Results 1 to 9 of 9
  1. #1
    Join Date
    Mar 2011
    Posts
    3

    Default Adverse Possession in New York

    I meant to post here and not in genl ownership section, sorry!

    My question involves real estate located in the State of: New York

    have owned house with fence for more than 15 years. have maintained property and fence for all that time. Never had survey done - had no reason as I believed fence to be properly in place as purchased

    Neighbor recently claims fence is on her property. she has lived here 5-7 years.

    Fixed fence just 6 months ago when neighbor's tree fell on it. I believe she knew that as I asked for reimbursement for damage to trees, fence, etc

  2. #2
    Join Date
    Sep 2010
    Posts
    10,344

    Default Re: Adverse Possession New York

    You're probably out of luck. The adverse possession laws were tightened up in New York and just a misplaced fence or landscaping will NOT be considered adverse.

  3. #3
    Join Date
    Mar 2008
    Posts
    1,995

    Default Re: Adverse Possession New York

    Quote Quoting ellie1
    View Post
    I meant to post here and not in genl ownership section, sorry!

    My question involves real estate located in the State of: New York

    have owned house with fence for more than 15 years. have maintained property and fence for all that time. Never had survey done - had no reason as I believed fence to be properly in place as purchased

    Neighbor recently claims fence is on her property. she has lived here 5-7 years.

    Fixed fence just 6 months ago when neighbor's tree fell on it. I believe she knew that as I asked for reimbursement for damage to trees, fence, etc
    I'm in NY, and adverse posssession in NY is 10 years, so if your fence is there 10 years or more, your neighbor cannot ask you to move it. See this interesting article:

    http://www.nytimes.com/2007/11/11/re...te/11home.html

    I myself have a fence that is 4 inches over my neighbors property, it was there since 1986 when my house was built. The neighbor owner who owned it in 1986 (family owned it over 40 years) was not aware of the encroachment till she sold the property two years ago. The buyer did a survey, made a stink about it, but was told by his own lawyer there is nothing he can do since the fence was there over 10 years.

    Having said that, we had a tornado here last August, the border fence was bent over 45 degrees, and I fixed it, paying it out of my own pockets as it was below the deductable. I knew full well if I went over and asked him to chip in for the fence repair, he's going to want to have it moved, so I ponied up the $600 and had new poles put in for the chain link fence.

    Now, looking at it from your neighbor's standpoint, she paid taxes on that part all that time, you had use of it, and 15 feet is not that insignificant area, and if I was her, I would have a problem swallowing the demand of an encroaching neighbors for payment. That was what I thought when we had the tornado here, and after hearing about how upset my new neighbor was over my encroachment, and his lawyer saying there was nothing he can do. In my case, I was only over four inches.

    The best analogy here is someone stole something from you (15 feet of space), it broke, now instead of giving it back, the neighbor wants to get paid for having it fixed. It takes some nerve, and that was why I didn't approach my neighbor for my fence repairs. When it happened, I told him I get it fixed as fast as I can, and he seemed pleased.

  4. #4
    Join Date
    Aug 2010
    Location
    Maine
    Posts
    201

    Default Re: Adverse Possession New York

    In addition to what Ron wrote, in general, adverse possession means that you, as the "taker", are aware that you are attempting to take possession of your neighbors land.

    In other words, you wrote that
    Quote Quoting ellie1
    View Post
    ...have maintained property and fence for all that time. Never had survey done - had no reason as I believed fence to be properly in place as purchased
    It appears you were either mistaken or unaware as to the location of the record line.

    For adverse possession, you HAVE to know where the record line is, and then openly attempt to take another's rightful ownership of their land.

  5. #5
    Join Date
    Mar 2011
    Posts
    3

    Default Re: Adverse Possession New York

    what would constitute adverse possession?

    from what I see, in NY:
    A party seeking to obtain title by adverse possession must prove by clear and convincing evidence the following common-law requirements of adverse possession: (1) that the possession was hostile and under claim of right; (2) that it was actual; (3) that it was open and notorious, (4) that it was exclusive; (5) and that it was continuous for the statutory period of 10 years

    can you please help me better understand each of these parameters?

    and from looking at recent case law, I believe I am on pretty solid ground, so to speak..., http://law.justia.com/cases/new-york...011-01231.html

    But I am just a homeowner and looking to the experts for advice and guidance! Thank you in advance for helping me!

    Newtons Apple -- what is the term then for my situation, where I believed it to be and have always treated it as my land. I thought that was important in NY as they did not want people just going in and claiming rights to something they knew was not theirs.

  6. #6
    Join Date
    Aug 2010
    Location
    Maine
    Posts
    201

    Default Re: Adverse Possession New York

    I was thinking more along the lines of recognition and acquiescence, which I assumed in New York was 21 years. I am always willing to concede I am wrong as I could not find a current statute for this doctrine in New York.

    After taking a closer look at the recent case law, and the changes the legislature made to the adverse possession statute, all I can say is you might have a case.

    However I think the bottom line here is what is the location of the record line versus the location of the fence? You wrote you never got a survey; does the neighbor have a survey of her property showing the location of the fence versus the record line? Little details like this will become important. You may wish to obtain your own boundary survey.

    You should call a real estate attorney in your jurisdiction for guidance. This will have to go through the court system in some form.

    I don't believe New York has a land court; something to consider would be a boundary arbitration. This is where a neutral party is called in to act as a mediator in the dispute. The mediator is the party who makes the ultimate ruling, which both parties have agreed to abide by. The advantage to going through arbitration is the mediator is typically an expert to the issues being argued; which by it's very nature creates a streamline effect, reducing the time and costs involved.

    A very good article on this type of arbitration can be found here: http://www.umaine.edu/set/svt/Articl...rbitration.pdf

    Good luck.

  7. #7
    Join Date
    Mar 2008
    Posts
    1,995

    Default Re: Adverse Possession New York

    Quote Quoting ellie1
    View Post
    what would constitute adverse possession?
    Here is a link to the latest NY law on "Adverse Possession", as amended in year 2008:

    http://www.tcbaweb.com/index.php?opt...date&Itemid=53

    Now, as I mentioned earlier, you and I may be in the same boat as both or our fences sits inside a neighbors land. In my case, I am not claiming the land as my own, simply, don't bother me about the fence.

    However, a friend of mine in Syosset NY had a opposite problem which occurred before the year 2008. He had a fence that was there when he bought the property in need of replacement, and had been there for over 20 years that anyone can recall. He had a survey done to make sure the replacement fence would be on the property line only to be told that is property line lies 10 feet beyond. Now, his neighbor had been using that 10 foot space for a vegetable garden as well as a shed.

    What he did was to tell the neighbor that he'll be placing a fence on the property line, so please remove the vegetable garden and shed. His neighbor got an attorney and objected on the basis of "adverse possession".

    What is the different here is neither your neighbor or mine is requesting the fence be moved. In my case, I chose not to escalate matters as my neighbor is aware of the encroachment, as related to me by the prior owner, but never spoke to me about it. It appears to be the same in your neighbors case.

    As to what "adverse possession" means, you are saying the land now "belongs to you" because you occupied it for so long. In my case, I am not telling my neighbor I own it, just that I won't be moving my fence.

  8. #8
    Join Date
    Sep 2010
    Posts
    10,344

    Default Re: Adverse Possession New York

    A shed is a structure that might be considered to be an adverse use of the land. As I pointed out, the legislature changed things a few years ago in NY. Fences are not considered an adverse use. Placement of a fence alone will not indicate that you are adversely possessing the property no matter what OTHER of the requirements (time, notoriety, etc...) are present.

  9. #9
    Join Date
    Mar 2008
    Posts
    1,995

    Default Re: Adverse Possession New York

    Quote Quoting flyingron
    View Post
    A shed is a structure that might be considered to be an adverse use of the land. As I pointed out, the legislature changed things a few years ago in NY. Fences are not considered an adverse use. Placement of a fence alone will not indicate that you are adversely possessing the property no matter what OTHER of the requirements (time, notoriety, etc...) are present.
    That's the way I read "non-adverse".

    What I am saying is neither the OP's neighbor or mine is asking our fences be removed, so "adverse possession" is not at issue, as I said "I'm not claiming the land". It might become one if the fence is inside the neighbors land, and then you ask him to pay for repairs of "your fence", and I can see the neighbor saying "then take your fence down".

    So I wouldn't push my luck and ask for fence repairs, as I chose not to in my case. But, it seems the way the statute is written, I don't think my neighbor can march over and demand the fence be taken down either.

    1. Sponsored Links
       

Similar Threads

  1. Adverse Possession in New York
    By ellie1 in forum Ownership and Title
    Replies: 1
    Last Post: 03-27-2011, 09:21 AM
  2. Adverse Possession in the State of New York
    By WootonBooton in forum Easement and Right of Way Law
    Replies: 3
    Last Post: 10-21-2009, 07:06 PM
  3. Adverse Possession: Adverse Possession in New York
    By homer14 in forum Boundary Disputes and Nuisance
    Replies: 1
    Last Post: 05-13-2009, 02:07 PM
  4. Adverse Possession: Neighbor Wants to Claim Adverse Possession in New York
    By sdoong in forum Boundary Disputes and Nuisance
    Replies: 1
    Last Post: 09-30-2007, 08:48 PM
  5. Adverse Possession: Adverse Posession in New York
    By Inquirer in forum Boundary Disputes and Nuisance
    Replies: 1
    Last Post: 07-25-2007, 08:34 AM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
 
Forum Sponsor
Real Estate Forms
Real estate forms and contracts, state specific, immediate download.




Untitled Document