hostile claim in New York

2025To protect the original owner's rights, the ordinary requirements of adverse possession were designed to ensure that the party whose interest might be extinguished had " 'notice of the hostile claim and be thereby called upon to assert his [or her] legal title' " ( Hinkley v State , 234 NY 309, 317 [1922], quoting Monnot v Murphy , 207 NY 240, 245 [1913]).

2025To protect the original owner's rights, the ordinary requirements of adverse possession were designed to ensure that the party whose interest might be extinguished had " 'notice of the hostile claim and be thereby called upon to assert his [or her] legal title' " ( Hinkley v State , 234 NY 309, 317 [1922], quoting Monnot v Murphy , 207 NY 240, 245 [1913]).

2025To protect the original owner's rights, the ordinary requirements of adverse possession were designed to ensure that the party whose interest might be extinguished had " 'notice of the hostile claim and be thereby called upon to assert his [or her] legal title' " ( Hinkley v State , 234 NY 309, 317 [1922], quoting Monnot v Murphy , 207 NY 240, 245 [1913]).

2025To protect the original owner's rights, the ordinary requirements of adverse possession were designed to ensure that the party whose interest might be extinguished had " 'notice of the hostile claim and be thereby called upon to assert his [or her] legal title' " ( Hinkley v State , 234 NY 309, 317 [1922], quoting Monnot v Murphy , 207 NY 240, 245 [1913]).

1952The object of the statute, we have recognized, “ is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and be thereby called upon to assert his legal title.” (Monnot v. Murphy, supra, 207 N. Y. 240, 245 ; see, also, Trustees of Town of East Hampton v. Kirk, 84 N. Y. 215, 220 .) Since the character of the acts sufficient to afford such notice “ depends upon the nature and situation of the property and the uses to which it can be applied ”, it is settled that the provisions of sections 39 and 40 are to be construed, not in a narrow or technical sense, b

1947Co. v. Mapes, 216 N. Y. 362 ; Koch v. Ellwood, 138 App. Div. 584 ; Shinnecock Hills & Peconic Bay Realty Co. v. Aldrich, 132 App. Div. 118 , affd. 200 N. Y. 533 .) For, as pointed out in Monnot v. Murphy ( 207 N. Y. 240, 245 ), the object of the statute “ is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and "be thereby called upon to assert his legal title.” (See, also, Trustees, Town of East Hampton v. Kirk, 84 N. Y. 215, 220 .) The record, before us establishes that in 1882 Dunning, an Adirondack» guide, a gypsy-like character, entered upon a *

2025But as the dissent concedes, notice need not be actual (dissenting op at 9; see Culver v Rhodes , 87 NY 348, 348 [1882]).

1922Co., 162 N. Y. 202, 220 .) Excessive use or violation of the right or privilege granted by the owner cannot create adverse possession until it amounts to a claim openly distinct from any claim of ownership on the part of the original proprietor. “ The object of the statute defining the acts essential to constitute an adverse possession is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and be thereby called upon to assert his legal title.” (Monnot v. Murphy, 207 N. Y. 240, 245 .) (See, also, Culver v. Rhodes, 87 N. Y. 348 ; Flora v. Carbean, 38 N.

2007Significantly, plaintiffs proof fails to demonstrate any “distinctive and decisive act” on its part or the part of its members that would have provided notice of a hostile claim to Myers, Berger or their predecessors (Lyon v Melino, 214 AD2d 992, 993 [1995] [internal quotation marks and citations omitted]; see Hassinger v Kline, 91 AD2d 988, 989 [1983]).

2001Plaintiffs failed, however, to present proof of any act on their part that would provide the requisite notice of a hostile claim (see, Lyon v Melino, 214 AD2d 992, 993 ).

1996By its special verdict, consisting of affirmative answers to five interrogatories, the jury found that defendant-husband’s adverse possession claim met the five conventionally recognized requirements: that his possession of the premises was (1) actual, (2) open and notorious, (3) exclusive, (4) hostile and under claim of right, and (5) continuous for a period of ten years between the divorce and commencement of the action (see, Brand v Prince, 35 NY2d 634, 636 ).

1987Put another way, defendants’ proof has satisfied the purpose of the adverse possession statute by showing the existence of acts by Fraser and his predecessors extending more than 10 years before this action was commenced, which unequivocally put plaintiff and its grantor upon notice of the hostile claim and thereby called upon them as legal owners to assert their title and right to possession (see, Monnot v Murphy, 207 NY 240, 245 ; see also, Brand v Prince, 35 NY2d 634, 636 , supra).

1994The requirement that the possession be continuous for a period of time exists so that the true owner can have an opportunity to discover that a hostile claim is asserted (Beutler v Maynard, supra; Jansen v Sawling, 37 AD2d 635 ).

1993The presence of a cabin, although not constantly inhabited or utilized, is a clear expression of intention to use the right of way; use of the [roadway] was actual, not merely threatened, and defendants were not powerless to stop the use during the prescriptive period” (Beutler v Maynard, supra, at 983).

2017Since this is, in part, a declaratory judgment action, the judgment should have included a provision declaring that VSI is not the owner of the property by adverse possession (see Lanza v Wagner, 11 NY2d 317, 334 [1962]).

2016Those refusals were sufficient to unequivocally notify plaintiffs of a hostile claim (see Koudellou v Sakalis, 29 AD3d 640, 641-642 [2006]; see generally Larsen v Hanson, 58 AD3d 1003, 1005 [2009]).

2016As to the period thereafter, the record contains numerous examples of requests by plaintiffs and their attorney for the removal of the sewer line being refused by defendant and the husband, and there is no evidence that, during the subsequent 10-year period, defendant or the husband acknowledged that they did not have a claim of right as to the sewer line’s placement (see generally Walling v Przybylo, 24 AD3d 1, 4-5 [2005], affd 7 NY3d 228 [2006]).

2016Those refusals were sufficient to unequivocally notify plaintiffs of a hostile claim (see Koudellou v Sakalis, 29 AD3d 640, 641-642 [2006]; see generally Larsen v Hanson, 58 AD3d 1003, 1005 [2009]).

2011Corp., 88 NY2d at 160 [internal quotation marks and citation omitted]; accord Robinson v Robinson, 34 AD3d at 976 ).

2011Corp., 88 NY2d at 160 [internal quotation marks and citation omitted]; accord Robinson v Robinson, 34 AD3d at 976 ).

2009Just as where the possessor first enters property by permission rather than claim of right and must thereafter establish that “the initial permissive use was repudiated or renounced” (Longshore v Hoel Pond Landing, 284 AD2d 815, 816 [2001], lv denied 97 NY2d 603 [2001]), we hold that, here, defendant had to demonstrate that his overt acknowledgment of plaintiffs’ ownership was expressly withdrawn or that defendant otherwise made it clear that he no longer believed plaintiffs owned the land before a new statutory period could commence.

2007Significantly, plaintiffs proof fails to demonstrate any “distinctive and decisive act” on its part or the part of its members that would have provided notice of a hostile claim to Myers, Berger or their predecessors (Lyon v Melino, 214 AD2d 992, 993 [1995] [internal quotation marks and citations omitted]; see Hassinger v Kline, 91 AD2d 988, 989 [1983]).

2005The issue of whether the possessor’s belief that he or she is not claiming another’s property will disprove the existence of a hostile claim of right was addressed in New York as early as 1860 (see Crary v Goodman, 22 NY 170, 175 [I860]), and it continues to arise when trial courts erroneously conclude that the unintentional or inadvertent possession of another’s property cannot be deemed to be adverse (see e.g.

2005Gore v Cambareri, 303 AD2d 551, 553 [2003]; Fatone v Vona, supra at 857 ).