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Walls And NY Squatter’s Rights

To establish a claim for “squatter’s rights” or adverse possession in New York, the claimant must establish that his or her possession was:

1) hostile and under claim of right;

2) actual;

3) open and notorious;

4) exclusive; and,

5) continuous for ten years.

Two recent New York County Supreme Court cases ruled on adverse possession cases involving walls.

In the first case, the Plaintiff sought a permanent injunction requiring Defendants to remove a wall allegedly encroaching on Plaintiff’s property.  The court noted that for over 10 years, Defendants possessed the disputed parcel of land in a manner that was open, notorious, hostile and continuous to the interests of Plaintiff.

It concluded such conduct was sufficient to warrant a finding of acquisition of the parcel by adverse possession, noting Plaintiff never objected to the presence of Defendants’ wall prior to commencement of the lawsuit. Thus, the court stated that  Plaintiff’s failure to assert its rights in a timely manner prevents it from prevailing on its claim.

As such, the court declared that Defendants were the lawful owners of the disputed parcel. Actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor. Rather, the ultimate element in the acquiring title through adverse possession is the acquiescence of the real owner to an obvious adverse or hostile ownership.

In the second case, the Plaintiff owned a 24-story building having a north wall on which three masonry chimneys rested on the south wall of Defendant’s adjacent three-story building. When Defendant began demolishing it’s building, Plaintiff filed suit for adverse possession of the land under and between the chimney stacks which had been part of Defendant’s property.

The court found that:

(a) Plaintiff’s complaint failed to establish the elements for an adverse possession claim because there was no evidence of actual occupation of the land on Defendant’s property;

(b) a portion of a building being erected on one’s land and projecting over the adjoining land of a neighbor fails to show hostility;

(c) there was no indication that possession of the areas under and between the chimneys was under any claim of right; and,

(d) it did not matter that Plaintiff’s property may have been in place for 80 years because mere possession of land without any claim of right, no matter how long it may be continued gave it no title.