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AMENDMENT TO ADVERSE POSSESSION STATUTE (2008) AND ITS IMPACT ON ACTS ACROSS A BOUNDARY LINE
Finally, it is lawn mowing season in New York. Lawn mowing is a task that many New York real property owners endure for the few short enjoyable summer months. It has also been a topic of controversy when considering the doctrine of adverse possession. Adverse possession is a longstanding legal principal that permits a party to deprive another party of its ownership of real property.
The elements of adverse possession claim, prior to the 2008 amendment, were that the possession is (1) hostile or adverse and under claim or right, (2) actual, (3) open and notorious, (4) exclusive; and (5) continuous for the statutory period of ten (10) years.
The change in 2008 came as a result of a Court of Appeals decision in the Walling v. Przybylo 7 N.Y.3d 228 (2006), aff’g, 24 A.D. 3d 1 (3d Dept. 2005). The Walling decision has forever changed the application of the adverse possession doctrine with the Court’s interpretation of claim of right that ultimately decided in favor of the adverse possessor for his acts of mowing, planting, and installing a fence to knowingly deprive his neighbor of that portion the yard.
The Walling decision prompted the New York State Legislature to revamp the Real Property Actions and Proceedings Law to limit the scope of the statute by acts of an adverse possessor. Now, an adverse possessor will need to establish a claim with good faith and mowing and other minor overt acts to infringe upon another’s individual property rights “shall be deemed to be permissive and non-adverse”. RPAPL § 543(2).
The legislature also, in response to the case, amended the statute to define adverse possession in an effort to avoid a Walling type result. See RPAPL §501 definitions below.
If you have any questions on the Adverse Possession Statute, please do not hesitate to contact me or the attorney in our office with whom you typically work.
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Since 1979, the Syracuse-based law firm of SCOLARO FETTER GRIZANTI & McGOUGH, P.C. has provided sophisticated tax, business, litigation, employee benefits, estate and trust planning and administration services to its individual, business, entrepreneurial and professional clients throughout New York, Pennsylvania, Florida and other states in which its attorneys are admitted to practice.