adverse possession claim in New York

2025Among the changes, the Legislature defined the terms 'adverse possessor,' 'acquisition of title,' and 'claim of right[,'] and altered the requirements that must be made out where the adverse possession claim is not based on a written instrument" ( Estate of Becker v Murtagh , 19 NY3d 75 , 81 n 4 [2012] [citations omitted]).

2025"Thus, in order to establish the hostility element, the party asserting the adverse possession claim must come forward with affirmative facts to establish that the use [of the property] was under a claim of right and adverse to the interests of [the true owners]" ( Becker , 19 NY3d at 82 [internal quotation marks omitted]).

2022Under the common law, "[t]his element is satisfied where an individual asserts a right to the property that is 'adverse to the title owner and also in opposition to the rights of the true owner'" ( Estate of Becker v Murtagh , 19 NY3d at 81 , quoting Walling v Przybylo , 7 NY3d at 232 ). "[A]n adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim" ( Walling v Przybylo , 7 NY3d at 233 ; see Hogan v Kelly , 86 AD3d 590 ; Asher v Borenstein , 76 AD3d 984 , 986). "'The ultimate element in the rise of a title through adverse possession is the acquiescenc

2014Further, because the adverse possession claim was not founded upon a written instrument, in order to obtain title to the subject property, the respondents were obligated to establish, in accordance with the law in effect at the time the claim allegedly ripened (see Galchi v Garabedian, 105 AD3d 700, 700-701 [2013]; Hogan v Kelly, 86 AD3d 590, 592 [2011]), that they “ ‘usually cultivated, improved, or substantially enclosed the land’ ” (Maya’s Black Cr, LLC v Angelo Balbo Realty Corp., 82 AD3d 1175, 1176 [2011], quoting Walsh v Ellis, 64 AD3d 702, 703 [2009]; see RPAPL former 522; cf. L 2008, c

2020All elements of an adverse possession claim must be proved by clear and convincing evidence ( see Marrone v Kally , 109 AD3d 880, 882 ; Best & Co. Haircutters, Ltd. v Semon , 81 AD3d 766, 767 ).

2015“Since adverse possession is disfavored as a means of gaining title to land, all elements of an adverse possession claim must be proved by clear and convincing evidence” (Ram v Dann, 84 AD3d at 1205 [internal quotation marks omitted]; see Best & Co. Haircutters, Ltd. v Semon, 81 AD3d 766, 767 [2011]).

2014Further, because the adverse possession claim was not founded upon a written instrument, in order to obtain title to the subject property, the respondents were obligated to establish, in accordance with the law in effect at the time the claim allegedly ripened (see Galchi v Garabedian, 105 AD3d 700, 700-701 [2013]; Hogan v Kelly, 86 AD3d 590, 592 [2011]), that they “ ‘usually cultivated, improved, or substantially enclosed the land’ ” (Maya’s Black Cr, LLC v Angelo Balbo Realty Corp., 82 AD3d 1175, 1176 [2011], quoting Walsh v Ellis, 64 AD3d 702, 703 [2009]; see RPAPL former 522; cf. L 2008, c

2013Pursuant to the law as it existed at the time the defendant’s adverse possession claim allegedly ripened (see Hogan v Kelly, 86 AD3d 590, 592 [2011]), to obtain title to land through adverse possession on a claim not based upon a written instrument, the claimant had to demonstrate that he or she “ ‘usually cultivated, improved, or substantially enclosed the land’ ” (Maya’s Black Cr., LLC v Angelo Balho Realty Corp., 82 AD3d 1175, 1176 [2011], quoting Walsh v Ellis, 64 AD3d 702, 703 [2009]; see RPAPL former 522; cf. L 2008, ch 269, § 5; Sprotte v Fahey, 95 AD3d at 1104 ).

2012Corp., 88 NY2d 154, 159 [1996]).

1996Corp. ( 88 NY2d 154, 156 ), Judge Titone, speaking for a unanimous Court, stated: "In determining whether the common-law requirement of 'continuity of possession’ has been met in an adverse possession claim to an estate in land, a court should consider not only the adverse possessor’s physical presence on the land but also the claimant’s other acts of dominion and control over the premises that would appropriately be undertaken by owners of properties of similar character, condition and location.

2021Corp. v Getty Saugerties Corp. , 68 AD3d 1392, 1395 [2009], lv denied 14 NY3d 706 [2010]). [FN3] In that respect, defendants submitted a deed, dated October 19, 1885, in which James McGrath conveyed to plaintiff an adjoining parcel of land for the purpose of operating a graveyard "for the Catholics of Shandaken and neighborhood," with a grave site reserved for the "McGrath" family. [FN4] Pointing to the 1885 deed, defendants averred that, "[h]ad the McGrath family wanted to provide [plaintiff] with fee simple ownership of the [property,] they would have done so." Defendants also proffered an a

2019Corp. v Getty Saugerties Corp. , 68 AD3d 1392, 1393 [2009], lv denied 14 NY3d 706 [2010]) [FN6] .

2014Further, because the adverse possession claim was not founded upon a written instrument, in order to obtain title to the subject property, the respondents were obligated to establish, in accordance with the law in effect at the time the claim allegedly ripened (see Galchi v Garabedian, 105 AD3d 700, 700-701 [2013]; Hogan v Kelly, 86 AD3d 590, 592 [2011]), that they “ ‘usually cultivated, improved, or substantially enclosed the land’ ” (Maya’s Black Cr, LLC v Angelo Balbo Realty Corp., 82 AD3d 1175, 1176 [2011], quoting Walsh v Ellis, 64 AD3d 702, 703 [2009]; see RPAPL former 522; cf. L 2008, c

2013Pursuant to the law as it existed at the time the defendant’s adverse possession claim allegedly ripened (see Hogan v Kelly, 86 AD3d 590, 592 [2011]), to obtain title to land through adverse possession on a claim not based upon a written instrument, the claimant had to demonstrate that he or she “ ‘usually cultivated, improved, or substantially enclosed the land’ ” (Maya’s Black Cr., LLC v Angelo Balho Realty Corp., 82 AD3d 1175, 1176 [2011], quoting Walsh v Ellis, 64 AD3d 702, 703 [2009]; see RPAPL former 522; cf. L 2008, ch 269, § 5; Sprotte v Fahey, 95 AD3d at 1104 ).

2013Additionally, since the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either “usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL former 522; see BTJ Realty, Inc. v Caradonna, 65 AD3d 657, 658 [2009]; Goldschmidt v Ford St., LLC, 58 AD3d 803, 805 [2009]).

2013Additionally, since the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either “usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL former 522; see BTJ Realty, Inc. v Caradonna, 65 AD3d 657, 658 [2009]; Goldschmidt v Ford St., LLC, 58 AD3d 803, 805 [2009]).

2012Petitioners concede that the subject property is not susceptible to an adverse possession claim if it was not transferred from the State’s ownership, as it was formerly under navigable waters (see Sadowski v Taylor, 56 AD3d 991 , 995 [2008]; see generally Hinkley v State of New York, 234 NY 309 [1922]; Knickerbocker Ice Co. v Shultz, 116 NY 382 [1889]).

2012Petitioners concede that the subject property is not susceptible to an adverse possession claim if it was not transferred from the State’s ownership, as it was formerly under navigable waters (see Sadowski v Taylor, 56 AD3d 991 , 995 [2008]; see generally Hinkley v State of New York, 234 NY 309 [1922]; Knickerbocker Ice Co. v Shultz, 116 NY 382 [1889]).

2017However, where there is a close and cooperative relationship between the record owner and the person claiming title through adverse possession, the presumption of hostility may not apply (see Estate of Becker v Murtagh, 19 NY3d 75, 82 [2012]). “[T]o establish the hostility element, the party asserting the adverse possession claim must ‘come forward with affirmative facts to establish that the use [of the property] was under a claim of right and adverse to the interests of [the true owner]’ ” (id. at 82, quoting Albright v Beesimer, 288 AD2d 577, 578 [2001]).

2012Thus, in order to establish the hostility element, the party asserting the adverse possession claim must “come forward with affirmative facts to establish that the use [of the property] was under a claim of right and adverse to the interests of [the true owners]” (Albright v Beesimer, 288 AD2d 577, 578 [3d Dept 2001] [internal quotation marks omitted]).

2015Beach Club, Inc. v Myers, 42 AD3d 602, 606-607 [2007], lv dismissed 10 NY3d 746 [2008]; Gorman v Hess, 301 AD2d 683, 685 [2003]; Allen v Mastrianni, 2 AD3d at 1024 ).

2011Corp., 88 NY2d at 161 ; see Robinson v Robinson, 34 AD3d at 976-977 ; Gorman v Hess, 301 AD2d 683, 684 [2003]). 5 Here, plaintiffs do not claim that they ever ejected trespassers, posted the parcel, marked its boundaries, fenced it before 2009, or took other affirmative actions to exclude others.

2026Here, contrary to the plaintiff's contentions, the defendant negated, prima facie, a necessary element of the plaintiff's adverse possession claim ( see Salzberg v Sena , 204 AD3d 853, 857-858 ; Dorce v Family Dollar Stores of N.Y., Inc. , 197 AD3d 1289, 1289 ).

2024Moreover, "an adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim" ( Walling v Przbylo , 7 NY3d 228 , 233 [2006]; see Salzberg v Sena , 204 AD3d 853, 856 [2d Dept. 2022]).

2018In Walling , the Court of Appeals noted that "an adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim," absent an overt acknowledgment by the claimant during the prescription period ( Walling v Przybylo , 7 NY3d at 233 , citing Van Valkenburg v Lutz , 304 NY 95, 99-100 [1952]).

2018In Walling , the Court of Appeals noted that "an adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim," absent an overt acknowledgment by the claimant during the prescription period ( Walling v Przybylo , 7 NY3d at 233 , citing Van Valkenburg v Lutz , 304 NY 95, 99-100 [1952]).

2015Additionally, where, as here, the adverse possession claim is not based upon a written instrument, the party asserting the claim “must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure’ ” (Estate of Becker v Murtagh, 19 NY3d 75, 81 [2012], quoting RPAPL former 522 [1], [2]; see Gallagher v Cross Hill, LLC, 45 AD3d 1013 , 1013- 1014 [2007]). 2 Plaintiffs’ property consists of a lakefront dwelling on a landlocked parcel that can be reached from the road only by a shared driveway on defendants’ land. 3 The disputed property lies at the end of th

2015Additionally, where, as here, the adverse possession claim is not based upon a written instrument, the party asserting the claim “must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure’ ” (Estate of Becker v Murtagh, 19 NY3d 75, 81 [2012], quoting RPAPL former 522 [1], [2]; see Gallagher v Cross Hill, LLC, 45 AD3d 1013 , 1013- 1014 [2007]). 2 Plaintiffs’ property consists of a lakefront dwelling on a landlocked parcel that can be reached from the road only by a shared driveway on defendants’ land. 3 The disputed property lies at the end of th

2013Additionally, since the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either “usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL former 522; see BTJ Realty, Inc. v Caradonna, 65 AD3d 657, 658 [2009]; Goldschmidt v Ford St., LLC, 58 AD3d 803, 805 [2009]).

2013Additionally, since the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either “usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL former 522; see BTJ Realty, Inc. v Caradonna, 65 AD3d 657, 658 [2009]; Goldschmidt v Ford St., LLC, 58 AD3d 803, 805 [2009]).

2013Here, the plaintiffs demonstrated that, by building and maintaining a wall along the subject strip, which was styled to match their house and attached to a gate attached to their house, they continually possessed the subject strip, for more than 10 years, in a manner that was open and notorious, exclusive, and inimical to the rights of the Kallys’ predecessor (see Estate of Becker v Murtagh, 19 NY3d 75, 81-83 [2012]; Walling v Przybylo, 7 NY3d at 232 ; Kelly v Bastianic, 93 AD3d at 693-694 ; Zeltser v Sacerdote, 52 AD3d 824 [2008]; Gaglioti v Schneider, 272 AD2d 436, 436-437 [2000]).

2013Here, the plaintiffs demonstrated that, by building and maintaining a wall along the subject strip, which was styled to match their house and attached to a gate attached to their house, they continually possessed the subject strip, for more than 10 years, in a manner that was open and notorious, exclusive, and inimical to the rights of the Kallys’ predecessor (see Estate of Becker v Murtagh, 19 NY3d 75, 81-83 [2012]; Walling v Przybylo, 7 NY3d at 232 ; Kelly v Bastianic, 93 AD3d at 693-694 ; Zeltser v Sacerdote, 52 AD3d 824 [2008]; Gaglioti v Schneider, 272 AD2d 436, 436-437 [2000]).

2012Similarly, “[a]n easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period” (Almeida v Wells, 74 AD3d 1256, 1259 [2010]; see 315 Main St.

2012Similarly, “[a]n easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period” (Almeida v Wells, 74 AD3d 1256, 1259 [2010]; see 315 Main St.

2011Corp., 88 NY2d at 161 ; see Robinson v Robinson, 34 AD3d at 976-977 ; Gorman v Hess, 301 AD2d 683, 684 [2003]). 5 Here, plaintiffs do not claim that they ever ejected trespassers, posted the parcel, marked its boundaries, fenced it before 2009, or took other affirmative actions to exclude others.

2007“To succeed on a claim of adverse possession, the possessor must establish by clear and convincing evidence that the character of the possession is hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of 10 years” (Robinson v Robinson, 34 AD3d 975, 976 [2006], lv denied 8 NY3d 805 [2007] [internal quotation marks and citations omitted]; accord Ropitzky v Hungerford, 27 AD3d 1031, 1031 [2006]; Gorman v Hess, 301 AD2d 683, 684 [2003]).

2025Additionally, under pre-amendment common law regarding the claim of right, "an adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim" ( Walling , 7 NY3d at 233 ; see also Mau v Schusler , 124 AD3d 1292, 1296 [4th Dept 2015]).

2025Contrary to defendants' related assertion that the claim of right and hostility element is undermined by plaintiff's purported [*5]knowledge of the boundary line, we reiterate that, under pre-amendment common law regarding the claim of right, "an adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim" ( Walling , 7 NY3d at 233 ; see Mau , 124 AD3d at 1296 ).

2007Possession is hostile when it “constitutes an actual invasion of or infringement upon the owner’s rights” (Ratona v Low, 226 AD2d 433, 434 [1996]).

1998We note that there is no merit to the appellants’ contention that the “malice” element required in order to recover punitive damages is the equivalent of the “hostility” requirement of an adverse possession claim (see, Katona v Low, 226 AD2d 433 ).

2025"The issue is 'actual occupation,' not subjective knowledge" of ownership ( Walling , 7 NY3d at 233 ; see Rote , 195 AD3d at 1524 ).

2025"The issue is 'actual occupation,' not subjective knowledge" of ownership ( Walling , 7 NY3d at 233 ; see Rote , 195 AD3d at 1524 ).

2010Second, as to defendant’s alleged use of the disputed parcel for storage, even if the presence of engine parts, lumber, and other “relatively insubstantial” materials (Campano v Scherer, 49 AD2d 642, 643 [1975]) were found sufficient to support an adverse possession claim, there is no evidence of the exact locations where these items were stored or that they were stored in the pad area (see id.).

1982Additionally, the record indicates that she and her husband sought permission to use the creek-side property, thus defeating her claim of prescriptive easement (Campano v Scherer, supra; Smith v Folmsbee, supra).

1996In fact, cultivating, improving and enclosing property are acts deemed by statute to be "possession and occupancy” of land and must additionally be proven to satisfy the statutory elements of an adverse possession claim where no written instrument describes the boundaries of the disputed property (see, RPAPL 521, 522 [1], [2]; Brand v Prince, 35 NY2d, at 636 , supra).

1996Real Property Actions and Proceedings Law article 5 establishes statutory requirements of an adverse possession claim that must be proven by clear and convincing evidence as well (Brand v Prince, 35 NY2d, at 636 , supra).