Neighbor Erected a Fence On My Property and Removed Marker

[kayart]

I am from Long Island, NY and have a large property that borders 4 other neighbors on one side. They all have errected fences. One is was on our property when we moved in. We spoke with this neighbor when we realized our marker was on their side of the fence. He apologized and said we are the new owners of his hand made fence. We were ok with that since we have such a large property. Another neighbor who just moved in, errected a fence in line with this neighbor's fence and he is now 18" on our property. Our marker is in concrete on his side of the fence. The pole coming up and ribboned by the survyer has been removed and placed on our side of the fence. First, we don't care about these neighbors using the land as we have enough and this is land back in woods we don't really use. But, we are concerned about this "let em use it for so long and you lose it" stories on the internet. In New York, can someone claim rights to your land by errecting a fence and utilizing the property? I always thought the survey is the legal binding instrument as a fence is not a permanent structure. I have called my local town and no one seems to know for certain believe it or not! Logically, everyone agrees with what I think but no one is certain what the law states. As most fences aren't perfect, they wave around trees, etc., I assume a lot of people are encroaching on other's property. So, does anyone know what the law is in NY? What rules over time; survey or person's fence? And does any one know of any cases in NY that I can refer to? Thanks very much for any help you can give!

[SteveG]

What you describe is adverse possession and it is real. I don't think you have any problem in the short run, but I would find a good real estate attorney who can help you protect you property.

[Mr. Knowitall]

Permissive use of land cannot become adverse possession. You should try to get documentary evidence (e.g., a signed letter or affidavit) from your neighbor indicating that the fence is on your property and he considers you its owner, and that he makes no claim of ownership or easement rights over any portion of your property. You should also try to get a similar written acknowledgement from the second neighbor that their new fence is on your land and they are permissive users, and if they refuse should seek to eject them as trespassers.

[aaron]

Permissive use can ripen into an easement, and could conceivably support an action for acquiescence to a boundary line (in states which recognize acquiescence), but it cannot form a basis for adverse possession. Adverse possession must be hostile to the ownership rights of the title owner, and hostility cannot exist within the context of a permissive use. See, e.g., Hancock v Estate of Hancock, 765 N.Y.S.2d 39; 309 A.D.2d 567 (2003); Chatsworth Realty v Hudson Waterfront Co of Crouse, 766 N.Y.S.2d 631; 1 A.D.3d 778 ("Plaintiff's permissive use of the property, albeit for many years, negates the element of hostility necessary to establish a claim of adverse possession").

For a possession that is initially permissive to become adverse, there must be some change in the possession which is sufficient to put the title owner on notice that the intention is adverse - typically this is described as a "heavy burden" on the person claiming adverse possession, entailing a drastic change in the nature of the possession.

The fact that the title owner has sold the land doesn't change the fact that the presence of others on the land is permissive, but it can raise problematic issues of proof in the event of litigation.

All of this, of course, may confuse the original issue - and it was a good suggestion to get documentary evidence from the encroaching landowners that they know the actual boundary line and that their use is permissive, and to eject them if they decline to provide such a statement.