5 Feet Adverse Possession

D

datzent83

New Member
Jurisdiction
New York
Hi,

I am having a dispute with my back year neighbor of 5 feet of land that belongs to me according to a legal survey that was done when I bought the house. Here are the details:

I bought my house September 2015 and started doing contraction March 2016. I had to do a land survey for construction to commence. As soon as I got my survey I came up to my neighbor and told him that after construction I will need my 5 feet back. Construction took a little over 2 years. I put up a temporary PVC fence so my kids can safely play in the back year. I didn't make a big deal about it until this last weekend when the back year neighbor started to build a block fence. I came up to him to tell him not to build the fence on my 5 feet since I want it back. He claims that since he bought the house 15 years ago and no one said anything to him about it he now has adverse possession. The only thing that he has on those 5 feet are 3 small trees.

My surveyor did an extension search a few days ago to see if there is any recorded easements, he didn't find any.

Can my back yard neighbor claim adverse possession?

Thank you all in advance.
 
datzent83 said:
Can my back yard neighbor claim adverse possession?
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In this world anything is possible.

If you fear something is amiss, do yourself a SOLID, and speak with a couple real estate attorneys.

Adverse possession in New York is "the occupation of a person or entity of real property of another with or without knowledge of the other person's superior ownership rights, in a manner that would give the owner a cause of action for ejectment." Real Property Actions & Proceedings Law (RPAPL) § 501 (1).
https://www.nysenate.gov/legislation/laws/RPA/501

So, if a person occupies someone else's land, even if he knows it is not his land and it is someone else's land, such person can acquire title over the property through adverse possession, for as long as the requirements for adverse possession are present.

Adverse possession in New York has to be:

hostile and under a claim of right,
actual,
open and notorious,
exclusive,
continuous for at least 10 years.
The 10-years time period is set forth in RPAPL § 501 (2)
https://www.nysenate.gov/legislation/laws/RPA/501
In relation to Civil Practice Law & Rules § 212. Hogan v. Kelly, 86 A.D.3d 590 (2011).
https://www.nysenate.gov/legislation/laws/CVP/212

As previously mentioned, even if the adverse possessor knew that the property was not his land and it was someone else's land, the adverse possessor can still have a "claim of right" which is a requirement for adverse possession to ripen into legal title.

Adverse Possession and Cloud on Title - How it Works in New York
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datzent83 said:
I bought my house September 2015 and started doing contraction March 2016.
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Assuming you meant construction, what was being built?

datzent83 said:
I came up to my neighbor and told him that after construction I will need my 5 feet back.
Click to expand...

What does this mean? Need it back?

datzent83 said:
Can my back yard neighbor claim adverse possession?
Click to expand...

He can claim anything he likes. Hazarding an opinion about the likelihood of such a claim being successful requires details about why he thinks part of your property is his.
 
AP can be a difficult hill to climb.

I think a lot of the dialog still remaining today goes back to the housing-economic crisis of ten or twelve years ago.

There was a lot bandied about at that time about AP on the internet, some of which still seems to be clinging around.

I would not be surprised that the neighbor of the OP simply thinks that he owns the five feet in question without further discussion, or perhaps just filing a form or two with the county for $25 or so is all it takes.

I will agree with previous advice to get a real estate attorney on this promptly is good advice. Based on the number of AP cases I have seen coming and going (only here in Ohio) I would say that the AP claimant in most cases has NO CLUE as to the legal expenses of just getting a case into court might be. I was willing to say (being retired out of this for a few years) that it might be $10,000 to $15,000 to just get such a case in court here in Ohio, So I checked with another licensed surveyor still in practice (also not in New York) for an opinion. She stated $15,000 to $20,000 in her experience. The OP's proactive act of getting a valid land survey means that the boundary set by the licensed surveyor is prima facie evidence to a court of the location of the boundary on the ground, until changed by an agreement of the neighbors, or until overturned in court.

To the OP I would also say that my non-lawyer research into New York AP cases would be that the neighbor's three trees planted, and any lawn mowing, are seen as de minimus non-supportive evidence of an AP claim. Also, the OP's claim to the neighbor that he would be recovering the five feet back at some point in the future might be seen as granting permissive use until further notice.

Your attorney can give better advice. Good Luck!
 
datzent83 said:
this last weekend when the back year neighbor started to build a block fence. I came up to him to tell him not to build the fence on my 5 feet since I want it back.
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Has he stopped the fence building? Still building it?

Should be obvious to you that if he doesn't stop, you'll have to sue him to get your 5" back.

Consult an attorney now. The longer you wait, the more it will cost you in attorney fees.

OTOH, if you bought an owner's title insurance policy when you bought the house, a call to the title insurance company's claim department tomorrow morning would be a good idea.
 
It might be seen that the first "hostile" act of the hostile requirement for AP as cited by a previous poster was the very recent placement of blocks as a "fence". That would begin the ten year toll for AP. As we have seen, the three small trees planted and some lawn mowing are de minimus or too small to matter in such a case in New York.

" In 2008, the state legislature adopted amendments to the law to change the way adverse possession claims were handled. These only apply to claims where the 10-year possession mark was reached on or after July 7, 2008. Here, the claimant must show that they had a reasonable belief that the land belonged to them and not another party. If they know that someone else holds legal title to the land, they can no longer make the claim of right necessary for adverse possession."

Understanding adverse possession in New York | Marcus, Gould & Sussman, LLP

In 2016, the neighbor was legally advised well before the ten year mark that they had no reasonable belief that they owned legal title.

It's not the OP who has to file a lawsuit to retain title.
 

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