Is That Possession Legally Adverse?

Author:Mr Victor Metsch
Profession:Smith Gambrell & Russell LLP

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years.

Needless to say, each and every element of the formula has developed a unique and discrete body of law - pursuant to which a final disposition is, as often than not, fact-specific. Several recent examples follow.

Mazzei v. Metropolitan Trans. Auth., 2018 NY Slip Op 06007, App. Div. 2nd Dept. (September 12, 2018)

Plaintiff sought a judgment against the MTA declaring plaintiff the owner of certain real property by adverse possession. Supreme Court granted MTA's motion to dismiss the adverse possession claim.

The Appellate Division summarized the action:

The plaintiff commenced this action against the Metropolitan Transportation Authority...the Staten Island Railway...and the City of New York, alleging, inter alia, that he acquired title by adverse possession to certain lots located adjacent to railway tracks in Staten Island[.]

The prior proceedings:

The plaintiff moved, inter alia, to preliminarily enjoin the defendants from accessing the property. The MTA and the Railway cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. The City submitted an attorney affirmation, inter alia, in support of the cross motion, and seeking dismissal of the complaint insofar as asserted against it. The Supreme Court denied the plaintiff's motion, and granted the cross motion of the MTA and the Railway[.]

The evidentiary standard:

Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it...Here, the evidentiary materials submitted by the MTA and the Railway in support of their cross motion do not, as a matter of law, resolve the parties' factual disputes such that it can be said that the allegations in the complaint as to the cause of action for adverse possession are not facts at all[.]

Reversing and concluding that:

Although a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute...when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession...Here, the MTA and the Railway did not conclusively establish that the property is not subject to adverse possession on the basis of governmental immunity. Although the MTA and the Railway submitted, inter alia, an agreement dated May 29, 1970, between the City, which owns the property, and the predecessors of the MTA and the Railway evincing a planned use of certain of [the] parcels of land adjacent to and near the property for a governmental purpose, that is, construction of a railway substation, the evidence did not conclusively establish that the property was part of the parcels of land designated for that planned use. Nor did the evidence conclusively establish that, during the time period relevant to the plaintiff's alleged adverse possession, the property was held for the purposes of that plan. Thus, the cross motion to dismiss must fail since a factual dispute remains as to whether, during the time period relevant to the plaintiff's alleged adverse possession, the property had been held by the government in a governmental or a proprietary capacity[.]

Fini v. Marini, 2018 NY Slip Op 06003, App. Div. 2nd Dept. (September 12, 2018)

Fini sued Marini for partition of real property. Marini counterclaimed based on adverse possession. Supreme Court denied cross-motions for summary judgment.

The Appellate Division summarized the action:

In this action for the partition of real property, the parties are brothers-in-law and former business partners. In 1970, they purchased [Lot 176] in tenants in common. Thereafter, they used Lot 176 for business purposes. In 1992, the parties decided to sever their business relationship. They entered into an agreement...whereby the plaintiff would sell all of his shares of the capital stock of four corporations to the defendant, said shares constituting all of the plaintiff's right, title, and interest in those corporations. The plaintiff continued working on Lot 176 until he went on disability in 1994.

The pleadings and prior proceedings:

In 2013, the plaintiff commenced this action for the partition of Lot 176, alleging that he had a present right of possession of the premises and a right to bring this action as the owner of an undivided share in the premises. In his answer, the defendant asserted counterclaims alleging adverse possession and breach of contract, and seeking legal fees. Subsequently, the defendant moved for summary judgment dismissing the complaint and on his counterclaims. The plaintiff cross-moved for summary judgment on the complaint and dismissing the defendant's counterclaims. The Supreme Court denied the defendant's motion and the plaintiff's cross motion, finding that there were triable issues of fact regarding the ownership interests of the parties in the subject property.

Affirmed denial of Marini's motion for summary judgment:

We agree with the Supreme Court's determination to deny that branch of the defendant's motion which was for summary judgment dismissing the complaint. The defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the complaint seeking the partition of Lot 176. The defendant did not demonstrate that the plaintiff had transferred his interest in Lot 176 to the defendant, or that the parties had agreed not to partition Lot 176. Contrary to the defendant's contention, a settlement agreement dated April 25, 2002...entered into by the parties to resolve a dispute regarding a parcel of property located in Suffolk County, did not effect a transfer to the defendant of Lot 176, which is located in Queens County. Nowhere in the 2002 agreement, including, but not limited to, the third "whereas" clause in said agreement, do the parties provide that the plaintiff's entire interest in Lot 176 would be transferred to the defendant. The deed referred to in that part of the 2002 agreement which provides for the transfer of title by delivery of said deed is the deed for the Suffolk County property. Moreover, contrary to the defendant's contention, the mutual releases in the 2002 agreement did not act as a bar to the plaintiff's action for partition.

And addressed the counterclaim for adverse possession:

The defendant also failed to establish his prima facie entitlement to judgment as a matter of law on his counterclaim for adverse possession. In order to establish his counterclaim for adverse possession, the defendant was required to prove, by clear and convincing evidence, that his possession of the property was (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required statutory period ...The defendant could not establish that his possession of Lot 176 was under a claim of right, as he did not have a reasonable basis for the belief that the property belonged to him alone...Even assuming that the defendant had exclusive possession of Lot 176 and that he paid maintenance expenses on that property, these actions are insufficient to establish a claim of right for purposes of adverse possession as against a cotenant...RPAPL 541 creates a statutory presumption that a tenant in common in possession holds the property for the benefit of the cotenant...The presumption ceases only after the expiration of 10 years of exclusive occupancy of such tenant or upon ouster[.]

Actual ouster usually requires a possessing cotenant to expressly communicate an intention to exclude or to deny the rights of cotenants. Ouster may be implied in cases where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them...Here, the defendant did not commit acts constituting either an actual or implied ouster. Absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession...Even assuming that the defendant had exclusive possession of the property after the plaintiff went on disability in 1994, the required 20-year statutory period had not elapsed when the defendant asserted his counterclaim for adverse possession in his answer on September 26, 2013.

Children's Magical Garden, Inc. v. Norfolk St. Dev., LLC, 2018 NY Slip Op 05223, App. Div. 1st Dept. (July 12, 2018)

Supreme Court denied defendant's motion to dismiss the adverse possession claim.

The Appellate Division summarized the facts:

This appeal involves what must be an extremely rare occurrence in Manhattan, to wit, a claim of adverse possession of prime real estate located in the Lower East Side neighborhood of Manhattan. Specifically, we are presented with a dispute over a vacant corner lot located at 157 Norfolk Street at its intersection with Stanton Street, one block south of East Houston Street in lower Manhattan. Plaintiff Children's Magical Garden...a not-for-profit corporation incorporated in 2012, is a community garden founded by its members in 1985 on Lots 16, 18, and 19 in Block 154. The Garden was founded by activists outraged by the accumulation of garbage and used needles on the lots located across the street from an elementary school.

Defendants Norfolk Street...

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