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Mowing Your Neighbors Lawn?
Mowing Your Neighbors Lawn?
By: Kelly J. Graves
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.
- Adverse Possessor. A person or entity is an “adverse possessor” of real property when the person or entity occupies real property of another person or entity with or without knowledge of the other’s superior ownership rights, in a manner that would give the owner a cause of action for ejectment.
- Acquisition of Title. An adverse possessor gains title to the occupied real property upon the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules, provided that the occupancy, as described in sections five hundred twelve and five hundred twenty-two of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.
- Claim of Right. A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register of the county, of the county where such real property is situated, and located by reasonable means.
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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