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Jason Greenberg*

We were so hoping that the Court of Appeals would look at this case from a moral standpoint. Obviously not. I keep asking the question, "Why did we have to know our property line, but our neighbor did not?" --Denise Przybylo1

INTRODUCTION Adverse possession2 law in New York has long struggled with a significant question: What state of mind, if any, must a possessor have to establish a claim for adverse possession? This issue had remained unclear and ill-defined.3 In 2006, the Court of Appeals finally clarified the law in Walling v. Przybylo,4 holding that state of mind is ultimately irrelevant to any analysis. The court reiterated that the purpose of adverse possession--to encourage land use and settle disputed titles5-- would better be served by an objective test.6

* Articles Editor, Cardozo Law Review. J.D. Candidate (June 2010), Benjamin N. Cardozo School of Law. I would like to thank Professor Stewart Sterk for his assistance, guidance, and counsel. A special thank you to my family and friends, especially my wife Delene, for their love and support. 1 Posting of Lucas A. Ferrara to New York Real Estate Lawyers' Blog, Adverse Possession: "License To Steal?," to_1.html (June 13, 2006, 14:52 EST). 2 Adverse possession is the doctrine by which title to real property is acquired when the property is used in a manner defined by law over a specified period of time. See infra Part I. 3 See infra Part I.A. 4 "Adverse possession, although not a favored method of procuring title, is a recognized one. It is a necessary means of clearing disputed titles, and the courts adopt it and enforce it because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable." Walling v. Przybylo (Walling II), 851 N.E.2d 1167, 1170 (N.Y. 2006) (quoting Belotti v. Bickhardt, 127 N.E. 239, 243, 308 (N.Y. 1920)). 5 Id. at 1170. 6 In adverse possession doctrine, an objective test would focus only on the externally observable conduct of an adverse possessor. See infra Part I.A.




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In response to the lobbying efforts of landowners7 who "lost" their property to adverse possessors, Governor Paterson signed into law Senate Bill No. 7915 on July 7, 2008.8 The legislation drastically alters the requirements for adverse possession in New York, specifically regarding what state of mind is required. Importantly, the statute requires proof of claim of right based on evidence that the adverse possessor had a reasonable basis for the belief that she owns the property in question.9 The legislation also changes the proof of possession element to require acts "sufficiently open to put a reasonably diligent owner on notice."10 Third, the legislation adds a new section relating to boundary disputes.11 This Note explores the significance of the changes to New York's adverse possession law. Part I outlines the doctrine and case law of adverse possession in New York. Part II discusses the old and new statutes and the resulting ambiguities that now exist under the new statute. Part III analyzes previously decided cases to determine how the new statute may be implemented. Part IV recommends that the courts adopt a series of presumptions to ease the evidentiary burden now placed upon adverse possessors. The Note concludes that adding an inquiry into the reasonableness of a person's belief will result in impeding the quieting of titles--a result which would be expressly against the purpose of adverse possession law. I. THE DOCTRINE OF ADVERSE POSSESSION IN NEW YORK Adverse possession statutes bar claims by rightful owners of land from legally recovering their land from the possession of another person occupying the land after a fixed period of time.12 To prove acquisition by adverse possession, a person must demonstrate that possession was:

7 See Posting of Lucas A. Ferrara to New York Real Estate Lawyers' Blog, Adverse Possession Update, (Oct. 17, 2006, 08:25 EST). 8 S. 7915, 2008 Leg., 231st Sess., 2008 N.Y. Laws 269. This Note refers to the Senate Bill, which is the same as Assem. 11574, 2008 Leg., 231st Sess. (N.Y. 2008); see also Governor's Approval Memorandum, 2008 N.Y. Sess. Laws 1655 (McKinney). The bill, enacted as 2008 N.Y. Laws 269, amends N.Y. REAL PROP. ACTS. LAW §§ 501, 511, 512, 521, 522, 531, 541, and 543 (McKinney 2008). 9 N.Y. REAL PROP. ACTS. LAW § 501(3) (McKinney 2008). 10 Id. §§ 512(1), 522(1). Although the changes to sections 512, 522, and 543 are intriguing, they are beyond the scope of this Note. 11 Id. § 543. 12 See Brand v. Prince, 324 N.E.2d 314, 316 (N.Y. 1974); 16 RICHARD R. POWELL, POWELL ON REAL PROPERTY § 91.05 (Michael Allan Wolf ed., 2008). Statutes of limitation restricting the reclamation of land date back to as early as 1275 in England. The subsequent English statutes were later incorporated into the early American laws, providing a basis for the acquisition of property through affirmative acts. Id.




(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period of time.13 In New York, prior to the recent amendment, the adverse possession statute further required that the land was "usually cultivated or improved" or "protected by substantial inclosure."14 These requirements permit an adverse possessor who uses the land as the true owner would, in the absence of the true owner, to gain title to the land. The doctrine exists to quiet titles while also functioning to punish the actual legal owner for his failure to utilize the land and bring a timely ejectment action.15 A. Hostility and Claim of Right--Does an Adverse Possessor Have a State of Mind?

Adverse possession, a centuries-old method of land acquisition, is rife with controversy. The primary dispute today is over the element requiring "hostility" or "claim of right."16 Commentators, courts, and legislatures have been in a dialogue,17 asking how much emphasis, if any, should be placed on the state of mind of the adverse possessor when determining the hostile/claim of right prong. Historically, "hostile" meant any possession that is opposed to all other claims.18 In other words, a possession is hostile when it actually infringes on the owner's rights.19 Furthermore, the nature of the possession must demonstrate that the possessor intends to possess the land as her own.20 Claim of right similarly means an entry with the intent to actually possess the land.21 Thus, it is this notion of "intent" in the hostility/claim of right prong that has given rise to much controversy

13 Walling II, 851 N.E.2d 1167, 1169 (N.Y. 2006); Belotti v. Bickhardt, 127 N.E. 239, 241 (N.Y. 1920). 14 N.Y. REAL PROP. ACTS. LAW §§ 512, 522 (McKinney 1979). 15 See William F. Walsh, Title by Adverse Possession, 16 N.Y.U. L.Q. REV. 532 (1939) (discussing the historical origins and evolution of adverse possession doctrine). 16 Although hostility and claim of right are two distinct requirements, they are often grouped together since adverse possession under a claim of right often satisfied the hostility requirement. POWELL, supra note 12, § 91.05. 17 See, e.g., R.H. Helmholz, Adverse Possession and Subjective Intent, 61 WASH. U. L.Q. 331 (1983) (arguing that although the majority position is that state of mind is irrelevant, his study of the case law suggests that courts nonetheless consider state of mind); Roger A. Cunningham, Adverse Possession and Subjective Intent: A Reply to Professor Helmholz, 64 WASH. U. L.Q. 1 (1986) (arguing that Professor Helmholz's analysis of the cases was incorrect, i.e., that subjective intent is irrelevant and that courts do not distinguish between good faith and bad faith). 18 POWELL, supra note 12, § 91.05. 19 Birkholz v. Wells, 708 N.Y.S.2d 168, 170-71 (App. Div. 3d Dep't 2000). 20 POWELL, supra note 12, § 91.05. 21 Id. This contrasts with squatters who enter and use land, but do not actually intend to possess the land. Id.



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because it can be and has been viewed as a mental state requirement. The question is whether an adverse possessor's state of mind should bear on determining intent, or if a court22 should simply presume intent from the possessor's objective conduct. In its earliest judicial opinions, New York courts favored an objective test when determining if an adverse possessor had the requisite intent when occupying another's land. As early as 1826, when deciding a claim dating back to before the Revolutionary War, the Court of Errors23 utilized an objective test, declaring a presumption of hostility where an adverse possessor occupied and improved the land as "owners are accustomed to [do]."24 The court held that unless the adverse possessor paid rent, recognized title in another, or disclaimed title herself, a claim of right would be presumed.25 Considering the length of time and the main goal of adverse possession--settling disputed titles-- and the long statute of limitations that then existed--twenty years--the court took an efficient approach and did not question the subjective intent of the adverse possessor. Indeed, the main focus in the early years of the doctrine in New York was the lax landowner. Thus, courts' rejection of an inquiry into an adverse possessor's mind could be attributed to a policy that punished true owners for not noticing that someone was occupying and improving their land. The court said as much in Humbert v. Trinity Church,26 when it upheld an adverse possession claim based on fraud.27 In explaining its decision, the court stressed the importance of the statute of limitations. It exists, said the court, to favor the positive use of land, as opposed to letting it sit unoccupied and unimproved, and to settle titles.28 Because of the twenty-year statute of limitations, notwithstanding any tortuous intent "it would be dangerous to open an

22 Although adverse possession is codified, it is also the product of common law. In New York, for example, until the current amendment, the only dictates of the statute were the length of possession, and the cultivation or enclosure requirement. The remaining requirements were developed and maintained by the courts. Today, all the requirements for adverse possession are codified. See infra Part II.C. 23 Prior to 1848, this was the highest state court of law; after 1948 the Court of Appeals is the court of last resort in New York. THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 221 tbl.T.1, (Columbia Law Review Ass'n et al. eds., 18th ed. 2005). 24 La Frombois v. Jackson, 8 Cow. 589, 603 (N.Y. 1826). 25 Id. at 603-04. The court held that the presumption could be rebutted by evidence suggesting no claim of right was ever made. Id. 26 Humbert v. Trinity Church, 24 Wend. 587 (N.Y. 1840). 27 See Crary v. Goodman, 22 N.Y. 170, 177 (1860) ("[T]he [Humbert] court held that even fraud in obtaining or continuing the possession would not excuse the negligence of the owner in not bringing his action within the prescribed period."). 28 Humbert, 24 Wend. at 609 ("Statutes limiting real actions generally operate in favor of the men who cultivate the soil, or inhabit the dwelling-houses of the country; and cannot discriminate between the rich and the poor, the powerful and the weak, the wise and the ignorant. Looking at their tendency to encourage men not only in the pursuits of agriculture, but every great interest of the nation, an argument of policy arises for their equal and steady application . . . .").




inquiry upon the bona fides of the defendant's claim."29 Any other policy, held the court, would render titles insecure.30 Thus, even if the adverse possessor is morally wrong, as long as the true owner is out of possession for the duration of the statute of limitations, the wrong essentially "mature[s] . . . into a right by cutting off the remedy."31 Considering the controversy in Humbert dated back 130 years, the court questioned the reliability and availability of documentary evidence and the possibility of perjury.32 New York's highest court continued to affirm this principle in the beginning of the twentieth century when it upheld acquisition by adverse possession both where the adverse possessor had knowledge the land was not hers33 and where she mistakenly encroached on land that was not hers.34 Furthermore, the court reiterated one rationale for adverse possession: It held that "the ultimate element" was the acquiescence of the true owner to the adverse possessor, that is, that the true owner stood by idly as the adverse possessor used and improved the land.35 Importantly, the court emphasized that the "unequivocal acts of the usurper," objectively observable by all, give notice of the hostility of the possession and therefore give cause to the true owner to assert his title. Moreover, the court characterized owners as "negligent" for not bringing an action before the statute of limitations tolled.36 Even if the adverse possessor knew she was wrongfully occupying someone else's land, it would be the true owner who had to carry the burden. Therefore, it made no difference if the land was held by mistake, as the actual physical occupation and improvement of the land counted as sufficient evidence of hostility, thus putting the true owner on notice.37 These early cases demonstrate how "state of mind" covers two discrete, yet interrelated, concepts--mistaken intent and knowing encroachment--and how the courts tended to ignore both mental states in favor of objective conduct. Indeed, the admission of evidence of mental states has roundly been criticized for two reasons. First, it

Id. at 612. Id. Id. at 604. Surely important to the court's decision was the history of the land in question in Humbert. It dated back "to the Dutch dynasty before the year 1663 . . . . [The evidence] comes to us through the mutations of empire, the fury of revolutions, repeated changes in the law of descents, in the law of common assurances . . . ." Id. at 610. 33 In Monnot v. Murphy, 100 N.E. 742, 743 (N.Y. 1913), the adverse possessor had been ejected earlier, but returned to the land ("Hosson had the same right, after he was ejected, to acquire or claim a title to the lands as he would have had in case he had never possessed or been ejected from them."). 34 In Belotti v. Bickhardt, 127 N.E. 239 (N.Y. 1920), the encroaching building was inadvertently built partially on the true owner's lot. 35 Monnot, 100 N.E. at 743. 36 Ramapo Mfg. Co. v. Mapes, 110 N.E. 772, 775 (N.Y. 1915). 37 Belotti, 127 N.E. at 2441.

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rewards bad-faith adverse possessors who knowingly and intentionally possess another's property.38 Second, it presents the difficulty to courts of determining what an individual intended when he took possession of the land.39 Instead, most courts, as did the early New York courts, eschew any inquiry into the adverse possessor's intent, holding that hostility should only be determined by the adverse possessor's easily observable acts of utilizing the land as a true owner.40 Yet, in Van Valkenburgh v. Lutz,41 the Court of Appeals disregarded its previous precedent and adopted a subjective test for determining hostility/claim of right. B. A Messy Century: The Failed Applications of the New York Doctrine 1. Origins of the Mess: Van Valkenburgh v. Lutz

In the 1952 case, Van Valkenburgh v. Lutz,42 New York adverse possession doctrine was again confronted with the question of whether the state of mind of an adverse possessor should be considered. The court, in a 4-3 decision, adopted a fully-subjective intent test.43 The lawsuit was the culmination of a feud that began in 1946 over a dispute involving the children of the litigious neighbors.44 The next year, the Van Valkenburghs purchased a triangle-shaped piece of land from the city of Yonkers.45 The parcel abutted the Lutz's backyard. Lutz had built a garage, shed, shack, hut, chicken coop, and other structures on part of the parcel, using it in some manner for more than twenty-five

See Manillo v. Gorski, 255 A.2d 258 (N.J. 1969). See Lila Perelson, New York Adverse Possession Law as a Conspiracy of Forgetting: Van Valkenburgh v. Lutz and the Examination of Intent, 14 CARDOZO L. REV. 1089, 1092 n.15 (1993) ("[I]t is often impossible to determine what the possessor would have intended . . . . It probably does not occur to the possessor . . . that the boundary line is incorrect until the mistake is discovered."). 40 See, e.g., French v. Pearce, 8 Conn. 439, 443 (1831) ("[I]nto the recesses of his mind, his motives or purposes, his guilt or innocence, no enquiry is made. It is for this obvious reason; that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor."); Chaplin v. Sanders, 676 P.2d 431, 436 (Wash. 1984) (holding that subjective belief is irrelevant, and that the hostility/claim of right element only requires a claimant to treat the land as his own against the world). See generally POWELL, supra note 12, § 91.01. 41 106 N.E. 2d 28 (N.Y. 1952). 42 Id. 43 Although this case has been read by courts as adopting a subjective test, this interpretation was not fully respected by lower courts. See Perelson, supra note 39, at 1098. 44 See generally id. at 1098-1104. 45 Id. at 1103.

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years.46 When Van Valkenburgh erected fences to block the Lutz family from using a "traveled way" across the Van Valkenburgh land, Lutz sued.47 After conceding the triangular parcel was not his, the court awarded Lutz an easement over the traveled way.48 Van Valkenburgh responded by suing Lutz to remove his encroachments; Lutz asserted that he had gained ownership of the property by adverse possession.49 Although the trial court found, and the appellate division affirmed, that Lutz had gained title by adverse possession, the Court of Appeals disagreed.50 In analyzing the elements of adverse possession, the court held that Lutz failed to prove his adverse possession claim. First, it analyzed the statutory elements: (a) protection by substantial inclosure and (b) substantial cultivation or improvement. The court found that Lutz's use of the land satisfied neither requirement.51 Specifically, the court held that placing the portable chicken coop, clearing brush, and littering the land with used building materials and auto parts did not constitute cultivation or improvement under the statute.52 Additionally, the court held that neither the construction of the shack nor the encroachment of the garage could satisfy the hostility/claim of right requirement because of Lutz's state of mind.53 In doing so, the court unwittingly developed two different standards for determining hostility. The first, for mistaken or ignorant encroaching, derived from Lutz's testimony that he did not survey the land where he placed the garage because he believed it was his.54 As Lutz thought he was building on his own property the court held that he fell short of establishing that the encroachment was hostile to the true owner.55 Second, the court proffered that Lutz's knowledge that the land the chicken coop was built on was not his, as evidenced by the earlier concession that he knew it was not,56 provided another basis for barring a claim of hostility. The court's focus on Lutz's state of mind thus created two standards that are hard to reconcile: Neither ignorance nor knowledge would permit acquisition of title by adverse possession.57 Furthermore,

Id. Id. Id.; Lutz v. Van Valkenburgh, 81 N.Y.S.2d 161 (App. Div. 2d Dep't 1948). Van Valkenburgh, 106 N.E.2d at 29. Id. Id. at 29. Id. at 30. Perelson, supra note 39, at 1107 n.145. Van Valkenburgh, 106 N.E.2d at 30. Id. This stemmed from the previously won suit that established a prescriptive easement over part of the disputed land. Lutz v. Van Valkenburgh, 81 N.Y.S.2d 161 (App. Div. 2d Dep't 1948). The court held that since Lutz conceded ownership to Van Valkenburgh in that action, he could not "disavow the effect of his favorable judgment." Van Valkenburgh, 106 N.E.2d at 30. 57 See Perelson, supra note 39, at 1109. This also begs the question that if neither intentional

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in adopting the subjective test, the court equated Lutz's acknowledgement that he knew he was encroaching--an admission he made after the statute of limitations had ended--with him knowing that he was encroaching during the period. This knowledge versus acknowledgement dichotomy would have later ramifications on whether subjective knowledge barred a claim of right.58 Moreover, these determinations directly contradicted the court's earlier holdings that disregarded an adverse possessor's subjective state of mind.59 2. What Walling Needed to Settle

Although Van Valkenburgh utilized a subjective test in determining that mistaken or knowing encroachment would not satisfy the hostility requirement, the Fourth Department60 held otherwise in 1970 in West v. Tilley.61 There, the defendant admitted to mistakenly enclosing a triangular portion of plaintiff's land with a cement wall. Over a period of twenty-five years, the defendant constructed and utilized a shuffleboard court on part of the land, as well as planted and maintained a lawn and shrubs. The plaintiff contended that the defendant's mistake prevented the defendant from having the requisite

nor mistaken encroachment suffices to fulfill the hostility/claim of right requirement, what mental state would? Perhaps because there is no answer, courts quickly permitted mistaken encroachment. 58 See infra Part I.B.2. 59 See, e.g., Humbert v. Trinity Church, 24 Wend. 587 (N.Y. 1840) ("Neither fraud in obtaining nor continuing the possession or knowledge on the part of the tenant, that his claim is unfounded, wrongful and fraudulent, will excuse the negligence of the owner in not bringing his action within the prescribed period; nor will his ignorance of the injury, until the statute has attached, excuse him, though such injury was fraudulently concealed by the contrivance of the wrong-doer." (emphasis added)); Barnes v. Light, 22 N.E. 441, 442 (N.Y. 1889) ("A claim of title may be made by acts alone, quite as effectively as by the most emphatic assertions."); see also Van Valkenburgh, 106 N.E.2d at 30-33 (Fuld, J., dissenting) (finding that Lutz, by his actions, proved his intent to possess the property as his own). 60 There are four Appellate Divisions of the Supreme Court, which hear intermediate appeals from the trial-level courts around the state. The First Department covers the counties of New York (Manhattan) and Bronx; the Second Department covers the remaining New York City counties of Queens, Kings (Brooklyn), and Richmond (Staten Island), and the suburban counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, and Westchester; the Third Department covers the counties of Albany, Broome, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Madison, Montgomery, Otsego, Rensselaer, St. Lawrence, Saratoga, Schenectady, Schoharie, Schuyler, Sullivan, Tioga, Tompkins, Ulster, Warren, and Washington; and the Fourth Department covers the counties of Allegany, Cattaraugus, Cayuga, Chautauqua, Erie, Genesee, Herkimer, Jefferson, Lewis, Livingston, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Seneca, Steuben, Wayne, Wyoming, and Yates. New York State Unified Court System, Appellate Divisions, (last visited June 25, 2010). 61 306 N.Y.S.2d 591 (App. Div. 4th Dep't 1970).




hostility and claim of right.62 The court disagreed, asserting that even though the claimant was mistaken as to whether the land belonged to her, the degree of cultivation and improvement was enough to put the true owner on notice.63 The court held that the objectively observable character of the possession served as an assertion of the possessor's title, and the court need not plumb the depths of a claimant's mind to determine her intent.64 In rejecting a subjective test, the court distinguished Van Valkenburgh by holding that the land in that case was not adversely possessed due to a failure to substantially cultivate or improve it.65 Furthermore, the court also recharacterized Van Valkenburgh, holding that Lutz had not mistakenly encroached, but instead knew he was encroaching.66 Thus, although the court used an objective test for mistaken intent, it also suggested that subjective knowledge could play a part in the court's analysis. It is no surprise then, that when the Third Department later adopted West's reasoning, it also shunned the relevance of remote beliefs, yet still required some inquiry into the mental state of an adverse possessor.67 In holding that mistaken encroachment would not bar adverse possession, the court stated that it is the "visible and adverse possession, with an intention to possess the land occupied under the belief that it is the possessor's own, that constitutes its adverse character, not the remote belief of the possessor."68 So a mistaken belief is too remote to consider, but some kind of belief is still required. Thus, the court distanced itself somewhat from Van Valkenburgh by permitting acquisition by adverse possession where there was mistaken intent,69 returning to the pre-Van Valkenburgh rule,70 but it still analyzed evidence of the adverse possessor's mental state. Thus, although mistaken intent would not bar an adverse possession claim, the issue of subjective knowledge was still

Id. at 594. Id. at 595. Id. at 594; see also Comment, Real Property--Adverse Possession--Mistaken Possession Fulfills Requirement of Hostility, 16 N.Y.L.F. 671, 674 (1970). 65 West, 306 N.Y.S.2d at 595. 66 See id. 67 Bradt v. Giovannone, 315 N.Y.S.2d 961 (App. Div. 3d Dep't 1970). See infra note 129 and accompanying text for further discussion of this case. 68 Bradt, 315 N.Y.S.2d at 965 (emphasis added). 69 See, e.g., Robarge v. Willett, 636 N.Y.S.2d 938, 940 (App. Div. 2d Dep't 1996) ("[T]o prove hostility, all that is required is a showing that the possession infringed on the owner's rights, even if inadvertent or by mistake." (internal citation omitted)); Sinicropi v. Town of Indian Lake, 538 N.Y.S.2d 380, 381 (App. Div. 3d Dep't 1989) ("Consequently, hostility may be found even though the possession occurred inadvertently or by mistake, as is the likely situation here."). 70 See, e.g., Belotti v. Bickhardt, 127 N.E. 239, 241 (N.Y. 1920) ("Adverse possession, even when held by a mistake or through inadvertence, may ripen into a prescriptive right after twenty years of such possession.").

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unresolved. When the Court of Appeals had the opportunity to clear up the objective versus subjective knowledge controversy, it, in fact, further muddled the issue. In 1991, in Van Gorder v. Masterplanned, Inc.,71 the Court of Appeals rejected an adverse possession claim where the adverse possessors acknowledged that ownership of the disputed property rested with another. This, in and of itself, is not controversial. One cannot be hostile or adversely possess land with a claim of right when one, in effect, disowns her claim. The court did not, however, discuss what effect subjective knowledge, without acknowledgment, would have on a claim of right. Without any guidance from the Court of Appeals, the four Appellate Divisions interpreted Van Gorder in different ways and disagreed over the effect of subjective knowledge on a claim of right. The Third Department held that Van Gorder and an objective test did not require an inquiry into the mind of the possessor.72 With no overt acknowledgment present, the court did not consider the possibility that the adverse possessor was aware that the land was not hers.73 The Fourth Department, however, disagreed and held that one cannot claim under a claim of right when she has knowledge that ownership belongs to another.74 Similarly, the Second Department found that a mistaken encroachment would be sufficient for a claim of right, but a knowing one would not.75 Also adopting a subjective test for knowledge, the First Department concluded from an adverse possessor's knowledge that she did not own the property and that she therefore had no claim of right, characterizing her occupancy as permissive or under license.76 These non-Third Department divergent decisions suggested that courts did not want to reward "bad faith" adverse possessors.77 Moreover, they also showed the growing split among the lower courts.

71 585 N.E.2d 375, 376 (N.Y. 1991) (holding that acknowledgement would "negate an essential element of plaintiffs' adverse possession claim, namely, that they continued to possess the property under a claim of right throughout the statutory period"). 72 See Birkholz v. Wells, 708 N.Y.S.2d 168, 171 (App. Div. 3d Dep't 2000) ("[I]t was not necessary to look into that owner's mind to determine her subjective intent at the time she transferred title, and other witnesses were qualified to provide evidence of her outward acts of ownership."). 73 Id. at 170. 74 See Falco v. Pollitts, 747 N.Y.S.2d 874, 875 (App. Div. 4th Dep't 2002) ("Possession under a claim of right is incompatible with knowledge or a belief that one does not own the land in question but that ownership rests in another." (internal citations omitted)). 75 See MAG Associates, Inc. v. SDR Realty, Inc., 669 N.Y.S.2d 314, 315 (App. Div. 2d Dep't 1998) (finding a triable issue of fact existed where a map indicated the true boundary lines). 76 See Joseph v. Whitcombe, 719 N.Y.S.2d 44, 47-48 (App. Div. 1st Dep't 2001) (characterizing the adverse possessors as "squatters" who knowingly entered without a claim of right, and holding that their permissive use could not develop into a claim of right). 77 Robert E. Parella, 1999-2000 Survey of New York Law: Real Property, 51 SYRACUSE L. REV. 703, 720 (2001).

2010] C.

NEW YORK ADVERSE POSSESSION LAW Walling v. Przybylo: Finally, a (Short-Lived) Solution


Walling v. Przybylo78 addressed this split among the lower courts. In 2004, after owning their property for fifteen years and living on it for over ten years, the Przybylos had their land surveyed and discovered that a "grassy lawn area" and "wooded portion" were occupied by the Wallings.79 The Wallings filed a claim seeking title to the area by adverse possession.80 The court found that the "grassy lawn area" was indeed acquired by adverse possession.81 The Przybylos then moved to renew their motion based on evidence that the Wallings knew that they did not own the disputed land.82 The Przybylos had obtained an affidavit from the parties' common grantor that stated that he told the Wallings the true (and pro-Przybylo) boundaries of the lot.83 The Wallings opposed the motion, arguing that they never acknowledged the true owners' title to the land.84 The Third Department, which had recently split with the First, Second, and Fourth Departments on the issue of knowledge versus acknowledgment,85 again held that "mere knowledge that another holds legal title" is not equivalent to "overt acknowledgment of title in another . . . ."86 In affirming the decision, the Court of Appeals laid out a brightline rule: "Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors . . . ."87 In so holding, the court finally and firmly aligned New York with the "pure possession" model of adverse possession.88 Excluding any inquiry into a possessor's state of mind, a case is confined to objectively observable conduct.89 According to the court, state of mind should not have a role in quieting titles by adverse possession. The court stressed that the acquiescence of the true owner in the face of an obvious adverse possession for over ten years

Walling II, 851 N.E.2d 1167 (N.Y. 2006). William Maker, Jr., Has the Court of Appeals Defined What Is Meant by a "Claim of Right" in Adverse Possession Cases?, N.Y. ST. B. J., Mar.-Apr. 2007, at 48. 80 Id. 81 Id. 82 Walling II, 851 N.E.2d at 1169. 83 Walling v. Przybylo (Walling I), 804 N.Y.S.2d 435, 436 (App. Div. 3d Dep't 2005); Maker, supra note 79, at 48. 84 Maker, supra note 79, at 49. 85 Id. at 48. 86 Walling I, 804 N.Y.S.2d at 437. 87 Walling II, 851 N.E.2d at 1169. 88 See Helmholz, supra note 17, at 332-33. 89 Id. at 332 ("[By] forsaking argument on the actual intent or knowledge of the possessor, adverse possession comes to depend upon a simple, and even an elegant, formulation of law.").

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prevented the Przybylos from recovering their land.90 In strong language, the court said that the Przybylos failed to assert their rights "in a timely manner."91 Ultimately, the court disregarded Van Valkenburgh's language that actual knowledge of true ownership would bar a claim of right, holding it as dictum.92 In essence, Walling returned the doctrine to its pre-Van Valkenburgh rationale and permitted for an easy-to-administer rule to quiet titles and settle disputes. II. THE STATUTORY IMPLEMENTATION OF THE DOCTRINE A. The Classic New York Statute

Chapter Five of New York's Real Property Actions and Proceedings Law is dedicated to adverse possession. The chapter can be characterized as dealing with three general adverse possession issues: where it is based on written instrument or judgment,93 where it is not based on written instrument,94 and where it is affected by the relationships95 of landlord and tenant96 and tenants in common.97 Before 2008, nowhere did the statute define hostile or claim of right, leaving those elements to the jurisdiction of the courts. Prior to the recent amendments, Chapter Five opened with a section detailing "actions upon entry" and when a valid claim to eject could be raised.98 Next, the statute did, and continues to, discriminate between adverse possessors who based their possession on a written

Walling II, 851 N.E.2d at 1169. Id. Id. at 1170. N.Y. REAL PROP. ACTS. LAW §§ 511, 512 (McKinney 2008). Whenever "written instrument" is mentioned in reference to these statutes, the term also includes "judgment." 94 Id. §§ 521, 522. 95 The new statute's possible effects on these relationships are beyond the scope of this Note, and thus the workings of these sections of the statute are omitted. 96 N.Y. REAL PROP. ACTS. LAW § 531 (McKinney 2008). 97 Id. § 541. 98 Prior to the 2008 amendment, the section provided that "[a]n entry upon real property is not sufficient or valid as a claim unless an action is commenced thereupon within one year after the making thereof and within ten years after the time when the right to make it descended or accrued." N.Y. REAL PROP. ACTS. LAW § 501 historical and statutory notes (McKinney 2008). Although the statute was unclear as to whose entry was sufficient or valid as a claim, it was interpreted as a reference to the general requirement of continuity on the part of the adverse possessor, and a restatement that continuity is broken by the entry of the record owner; consequently, the record owner must file a claim within one year of her entry for the claim to be valid for an ejectment suit. Brooks v. Anderson, 442 N.Y.S.2d 133, 136 (App. Div. 2d Dep't 1981) ("[A]n entry by the record owner of real property upon his property, for the purpose of breaking the continuity of adverse possession, is not sufficient or valid as a predicate for an action for ejectment unless the action is commenced within one year of the entry, and within ten years of the commencement of the adverse possession.").

90 91 92 93




instrument and those that did not.99 The primary difference between the two adverse possessors is that when the adverse possession is based on a written instrument, even if the adverse possessor only occupies a portion of the property, she is entitled to constructive possession of the entire property, as described in the instrument.100 Conversely, where adverse possession is not based on a written instrument, only the portion of the property actually occupied and possessed can be acquired.101 The two bases for adverse possession also included two differing standards for possession and occupation, or what the statute deems "essentials." For claims based on a written instrument, land is deemed to have been possessed and occupied where: (1) "it has been usually cultivated or improved"; (2) "it has been protected by a substantial enclosure"; or (3) if not enclosed, "it has been used for the supply of fuel or of fencing timber, either for the purposes of husbandry or for the ordinary use of the occupant."102 For claims not based on a written instrument, the adverse possessor can only possess land where "it has been usually cultivated or improved" or "has been protected by substantial inclosure."103 These requirements ensure that any possession is visible, open, and, notorious, thus putting the record owner on notice.104

99 See, e.g., Hutton v. Townsend, 542 N.Y.S.2d 48, 49 (App. Div. 3d Dep't 1989) (describing the difference between sections 511 and 521). 100 Section 511 provides for adverse possession under written instrument or judgment: Where the occupant or those under whom he claims entered into the possession of the premises under claim of title, exclusive of any other right, founding the claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and there has been a continued occupation and possession of the premises included in the instrument, decree or judgment, or of some part thereof, for ten years, under the same claim, the premises so included are deemed to have been held adversely; except that when they consist of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot. N.Y. REAL PROP. ACTS. LAW § 511 (McKinney 2008). 101 Section 521 provides for adverse possession not under written instrument or judgment: "Where there has been an actual continued occupation of premises under a claim of right, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely." Id. § 521. 102 Id. § 512. The section further reads: Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared or not enclosed, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length of time as the part improved and cultivated. Id. 103 N.Y. REAL PROP. ACTS. LAW § 522. 104 See, e.g., Ramapo Mfg. Co. v. Mapes, 110 N.E. 772, 776 (N.Y. 1915) ("The purpose of the statute was to make the possession real, and not constructive, so that it shall be visible, open, and notorious . . . and to indicate exclusive ownership of the property."); Shinnecock Hills & Peconic Bay Realty Co. v. Aldrich, 116 N.Y.S. 532 (App. Div. 2d Dep't 1909). The courts have held that the statute should not be read narrowly. See id. at 537. Instead, it should be understood that the property can only be cultivated or improved to the extent that the physical characteristics of the

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The Senate's First Pass at New Legislation: What Did You Know?

Senator Little proposed Senate Bill 5364105 on April 25, 2007, less than a year after the Przybylos lost their appeal. It purported to deal with the problem of "bad faith" adverse possession in a simple way: It would toll the statute of limitations for adverse possession if the claimant had actual knowledge that another was the true owner.106 The bill attempted to overturn Walling by refocusing the inquiry to subjective knowledge. It would have effectively created a never-ending statute of limitations.107 For instance, if a person had knowledge eleven years ago that she was occupying someone else's land, but her occupation was otherwise hostile, actual, open and notorious, exclusive, and continuous, she would lose her claim. This is at odds with the purposes of adverse possession--quieting titles and rewarding productive landowners, among other rationales--and one of the purposes of a statute of limitations--safeguarding against the loss of evidence.108 Therefore, titles could become unsettled, as true owners, even if they did not value their land enough to notice that someone was encroaching, could eject someone who had been living on and productively utilizing the land for more than ten years. The bill would have shifted the focus of the doctrine from the objective conduct of the adverse possessor to what the adverse possessor knew. It would be possible, then, for an adverse possessor to lose land she rightfully possessed for thirty years. All someone would have to do would be to argue that she was the true owner, and that the adverse possessor was told this thirty years earlier.109 No longer would the adverse possessor's thirty years of actual occupation suffice to prove she was the owner. Instead, she would have to resurrect evidence from three decades earlier. Indeed, Governor Spitzer raised these concerns

land permit. Thus, early decisions found grass cutting adequate where the land could not otherwise be improved for agricultural purposes; holding otherwise would mean that the land could never be acquired by adverse possession. Id. at 537-38. Thus, courts have emphasized the importance of the "nature, character, condition, and location" of the land to any analysis. Ramapo Mfg. Co., 110 N.E. at 776. For instance, land that can support a garden or farming, then, is not sufficiently cultivated when it is only occasionally mowed. See id. at 776. 105 S. 5364, 2007 Leg., 230th Sess. (N.Y. 2007). 106 Specifically, the bill added a requirement that the possessor had no actual knowledge that the claim was invalid or void because another person was the title owner. Id. 107 Memorandum in Opposition No. 13 from the New York State Bar Association, Real Property Law Section (July 18, 2007), LegislativeMemoranda20072008/RPLS07Memorandum13.pdf. 108 See Veto Message No. 153 from Gov. Eliot Spitzer (Aug. 28, 2007), in SUMMARY OF 2007 REAL PROPERTY TAX LEGISLATION 28 (Joseph K. Gerberg ed., 2007), available at 109 See id.




when he vetoed the bill, objecting to its requirement of determining a person's belief.110 C. The New Statute: Did You Have a Reasonable Basis for Your Beliefs?

One year after introducing the vetoed bill, Senator Little introduced a revised bill, which Governor Paterson signed into law.111 Senate Bill No. 7915 drastically alters the requirements for adverse possession, aligning New York with a minority of the states that require proof of "good faith," or a lack of "bad faith."112 The new statute must be interpreted as the Legislature's reaction to Walling, and the Legislature's belief that a focus on solely objective conduct encouraged the "offensive use" of adverse possession.113 Instead, adverse possession, argue the bill's supporters, should only be used to settle good faith disputes.114 To satisfy Governor Spitzer's qualms with the prior bill, the new statute focuses "the inquiry not upon the person's belief, but instead upon the evidence introduced in court which justifies a reasonable basis for that belief. . . . The court will determine whether or not there was a reasonable basis."115 The bill's supporters purported to be codifying an objective standard, even though the law now requires an inquiry into the basis for belief, which can take into account the adverse possessor's subjective belief. The revised bill makes three primary changes to New York's Real Property Actions and Proceedings Law.116 First, the legislation defines adverse possession, adverse possessor, acquisition of title, and claim of right. Second, the legislation changes the already-existing statutory requirements of adverse possession.117 Third, the legislation adds a new

Id. Governor's Approval Memorandum, 2008 N.Y. Sess. Laws 1655 (McKinney). As Governor Spitzer was no longer in office when the Legislature passed the bill, one wonders whether he would have again vetoed the bill. 112 See Introducer's Memorandum in Support from Sen. Elizabeth Little, S. 7195, 2008 Leg., 231st Sess., 2008 N.Y. Laws 269 [hereinafter Little Memo]. 113 Id. 114 Id. 115 Id. 116 Act of July 7, 2008, ch. 269, 2008 N.Y. Laws 269 (amending N.Y. REAL PROP. ACTS. LAW §§ 501, 511, 512, 521, 522, 531, 541, 543). 117 In addition to the changes discussed in length, the statute also strikes out the long-held statutory requirement that the possessed land be "usually cultivated or improved." Id. Now, the land will be possessed only if "there has [sic] been acts sufficiently open to put a reasonably diligent owner on notice." N.Y. REAL PROP. ACTS. LAW §§ 512(1), 522(1) (McKinney 2008). In effect, this amended requirement seemingly collapses the judicially proscribed notice requirement and the statutory requirement into one inquiry. The changed language also suggests the awareness of the legislature that "usually cultivated or improved" has been repurposed by courts

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section relating to boundary disputes.118 The passed legislation actually incorporates many suggestions of the New York State Bar Association's Real Property Law Section Task Force on Adverse Possession (NYSBA), who vociferously opposed the vetoed bill, and the bill as enacted.119 However, by simply adopting much of the suggested legislation, but making additional changes, the bill results in a number of ambiguities. The first amendment to section 501 is benign, but demonstrates the Legislature's inartful drafting. The statute defines, for the first time, who is an adverse possessor:

A person or an 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.120

By referencing the knowledge, or lack thereof, of another's superior ownership rights, the NYSBA intended to codify the holding of Walling--that the subjective state of mind is irrelevant to any analysis.121 The legislation thus permits one definition of an adverse possessor as someone who had knowledge, which the legislature surely did not intend. In application, however, this definition can be read as a standardization of the language used when discussing adverse possession: Regardless of an adverse possessor's success in acquiring land via adverse possession, she is still an adverse possessor, even if she loses her claim. Since this definition suggests that knowledge plays no part in an analysis, however, the legislature has left a door open for differing interpretations and the sure-to-come litigation. Section 501 also codifies the already-existing, judicially determined elements of adverse possession.122 That is:

An adverse possessor gains title to the occupied real property upon

for decades in a much similar way. See supra note 104 and accompanying text. The effects of this change are beyond the scope of this Note. 118 The final change restricts the types of possession or occupation that will be considered adverse. Now, "de minimus . . . non-structural encroachments, including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls" and "acts of lawn mowing or similar maintenance" across boundary lines will be deemed permissive and non-adverse. N.Y. REAL PROP. ACTS. LAW § 543(1)-(2) (McKinney 2008). This change will have to be dealt with case-by-case in the courts, as each Appellate Division, and ultimately the Court of Appeals, determines a standard for de minimus structures and maintenance. The question is beyond the scope of this Note. 119 See Memorandum in Support No. 23 from the New York State Bar Association, Real Property Law Section (June 12, 2008), Legislation/LegislativeMemoranda20072008/NYSBAMemorandum23.pdf [hereinafter NYSBA Memorandum in Support No. 23]. 120 N.Y. REAL PROP. ACTS. LAW § 501(1) (McKinney 2008). 121 NYSBA Memorandum in Support No. 23, supra note 119, at 12-13. 122 See discussion supra note 13 and accompanying text.




the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section [212]123 of the civil practice law and rules, provided that the occupancy, as described in sections [512] and [522] of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.124

These elements of adverse possession are the same elements from the common law as applied by the courts of New York. This subsection is the heart of the doctrine. It bars any recovery for a true owner after ten years have passed, assuming the adverse possessor fulfills the nowstatutory requirements. The most striking change of the bill is the newly redefined common law notions of "hostile and under a claim of right." It separates the once-single element into two: "adverse" and "under claim of right." Although "adverse" is synonymous with the earlier-used "hostile," a claim of right has now been recognized as a discrete element with a new statutory definition, distinct from its former common law meaning: "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."125 A plain reading of the "the property owner, as the case may be" language raises an anomaly. This language clearly suggests that an adverse possessor can satisfy the claim of right requirement if she has a reasonable basis to believe that the land is the property owner's. This clearly is not what the legislature intended, and courts will likely interpret the statute as the legislature intended.126 This ambiguity raises the question of how much deference courts will give to the intent of the legislature versus the language of the statute because of the conflicting interpretations permissible and the vagaries of a reasonable-basis test. Instead of Walling's objective test or the vetoed bill's exclusive focus on an occupier's subjective knowledge, the new legislation

123 Section 212(a) bars any claims to recover property after ten years have passed from the beginning of the adverse possession. "An action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action." N.Y. C.P.L.R. 212(a) (McKinney 2008). 124 N.Y. REAL PROP. ACTS. LAW § 501(2) (McKinney 2008). 125 Id. § 501(3). The definition also provides a safe harbor provision: 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. Id. This omits the requirement of a claim of right when the real owners cannot be ascertained through title records by reasonable means. 126 See Matter of M.B., 846 N.E.2d 794, 800 (N.Y. 2006) (stating that the court's task in statutory interpretation is "to ascertain the legislative intent and construe the pertinent statutes to effectuate that intent").



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requires proof of a reasonable basis for the belief of the ownership of the land occupied. Due to the statute's flawed language, it can be interpreted on a purely objective basis, or one imbued with subjectivity. Under an objective reading, the adverse possessor would provide external evidence that could lead a fact-finder to believe there was a reasonable basis for the belief that the land was the adverse possessor's. Any evidence suggesting subjective beliefs could be rejected by pointing to the ambiguity present in section 501(1), that a person can be an adverse possessor even with knowledge of another's ownership rights.127 Thus, even if John knew that he was encroaching on his neighbor's land, if there was evidence available that could provide proof of a reasonable basis for his belief in ownership, he could acquire the disputed land by adverse possession. This is a perverse reading in light of the intent of the legislature, but not entirely without support in the legislative history. Although the legislature clearly intended to stop bad-faith adverse possessors, it also intended a statute that did not focus on a person's belief.128 More in reading with legislative intent, however, is an interpretation that would require the adverse possessor to present evidence of why she had a reasonable basis for her subjective belief in her ownership. Under this reading, a person's subjective belief would be irrelevant only to the extent that it did not turn a reasonable basis into an unreasonable one. Under this reading of the statute, irrefutable evidence that John knew he was encroaching would foreclose the possibility that John had a reasonable basis for believing the land was his. But, between this extreme and the opposite, where there is no evidence to suggest unreasonableness, exists the question of what is reasonable.129 First, the requirement that landowners provide some type of proof (beyond a valid title and deed) to support a reasonable basis is difficult, if not sometimes impossible to achieve. Whereas predecessors-ininterest are sometimes available to testify and can therefore provide testimony that conversations happened years earlier, at other times they will be dead or difficult to locate. Unlike the objective standard, which avoided this problem, the reasonable-basis test, if applied to someone who could not proffer the proper evidence because the seller she bought

N.Y. REAL PROP. ACTS. LAW § 501(1) (McKinney 2008). See Little Memo, supra note 112. It should be noted that New York State is far from homogenous and there are different notions of what is reasonable. This will no doubt lead to different courts developing different standards all over the variously populated counties of the state. Judges and juries in the First and Second Departments no doubt have different ideas about what is reasonable than judges and juries in the Third and Fourth Departments. See supra note 60. In turn, this will lead to uncertainty within and among every jurisdiction about how reasonable a homeowner has to be when improving on her land.

127 128 129




the house from thirty years earlier was dead, could cause her to lose her land and all the improvements she made to it. Also still to be determined is whether an adverse possessor claiming title based on a deed has to prove the reasonable basis of her predecessor-in-interest's belief.130 This could extend the need for evidence back into the past by generations. Moreover, there is the fundamental question of the veracity and reliability of the statements of sellers, who are motivated to sell their land and may not be fully truthful. Similarly, if the seller were to tell the buyer that the disputed land was part of the deeded parcel, but the seller was mistaken, the question arises whether the buyer would presumably still have a reasonable basis. Compare that scenario, however, with the situation where the seller tells the buyer the land is now hers, but a neighbor says it is not. The question whether the seller's or the neighbor's oral statement provides a more reasonable basis will have to be determined, and depending on the evidence available, an adverse possessor that actually purchased and utilized the land in good faith could lose out to a neighbor that idly sat by for years even if he could have noticed the adverse possession. Furthermore, if a predecessor-in-interest is available to testify, there are multiple scenarios that have different implications under the new law and demonstrate the ambiguity of interpreting the statute as either purely objective or as requiring objective proof to support a subjective belief. First, assume the seller tells the buyer that the disputed land is not part of the deeded property.131 Here, the intended outcome would be against the adverse possessor, since direct knowledge from the seller would preclude a reasonable basis for the belief the land was included in the sale. This reading hews closely with the stated intent of the legislature, but is tantamount to focusing on the subjective belief of the adverse possessor. Even more troubling would be the case where the seller said the disputed land is not part of the property, but a survey says otherwise.132 Consequently, what if evidence existed that an adverse possessor did not locate?133 For instance, if there were deeds, survey maps, and title insurance policies in existence, what responsibility should the adverse possessor have in searching for these records? Although the

130 Section 511 states that "[w]here the occupant or those under whom the occupant claims entered into possession of the premises under claim of right . . . ." N.Y. REAL PROP. ACTS. LAW § 511 (McKinney 2008). The import of the functioning of this section is discussed generally below. 131 Although never determined by the Walling court, this was the argument put forth by the Przybylos. See infra notes 138-144 and accompanying text. 132 See infra Part IV for possible remedies. 133 This hypothetical is based on Birkholz v. Wells, 708 N.Y.S.2d 168 (App. Div. 3d Dep't 2000). There, the court said it would not focus on what defendants knew or did not know, and would instead focus on their observable actions, thus affirming their acquisition of the property by adverse possession. Id. at 171-72.



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statute provides for a safe harbor by not requiring a claim of right when the true owner cannot be ascertained from public records,134 it is silent about the necessity of searching for such records. Thus, a record owner could presumably present such evidence to refute the adverse possessor's reasonable-basis evidence. It is also possible that a court could determine that not searching for such evidence could be considered prima facie evidence of unreasonableness. Therefore, it is unclear whether mistaken or willful ignorance on the part of an adverse possessor where documentary evidence is available could preclude her having a reasonable basis for her belief. Because the new statute can be read as partially subjective, its effect on tacking135 is also unclear. Suppose John just purchased Whiteacre, and his predecessors-in-interest fulfilled all of the requirements to gain title of Blackacre by adverse possession, which was represented to John as part of Whiteacre. When John had the property surveyed, he learned that this portion of adversely possessed Blackacre was sold to him as part of Whiteacre. Thus, he purchased the land in good faith, but knew that part of the neighboring property was improperly included in his purchase. Under Walling, this case would be resolved for John because his knowledge would not bar his claim, and would further the goal of quieting titles. Under the new statute, this could be frustrated. If the owner of Whiteacre sued John, John's knowledge could preclude a finding of reasonable basis.136 However, since John's predecessors-in-interest had good title, John should gain the benefit of their acquisition. The legislative history is no help in analyzing a scenario such as this one, and it is unclear whether a landowner who sat idly by in the face of one adverse possessor should be able to take advantage of her successor. It seems obvious then that the statute will not function exactly as the legislature intended. The legislature had the estimable goal of preventing bad-faith adverse possessors from using the doctrine to intentionally take someone else's land. It intended to restrict the doctrine to settle good-faith disputes to who owned land.137 In practice, however, it seems unlikely that the new law will be so easily applied. Under a purely objective reading, adverse possessors can still acquire land in bad faith. Under a partially subjective reading, meanwhile, good-faith adverse possessors can lose land that they otherwise would have acquired absent the requirement to provide evidence that they

N.Y. REAL PROP. ACTS. LAW § 501(3) (McKinney 2008). Tacking is the process whereby continuity of possession may be proven by combining the duration of occupation of successive possessors. See, e.g., Brand v. Prince, 324 N.E. 2d 314 (N.Y. 1974); Belotti v. Bickhardt, 127 N.E. 239 (N.Y. 1920); see also infra Part III.C. 136 Again, this is under the interpretation of the statute that most clearly follows the intent of the Legislature. 137 See Little Memo, supra note 112.

134 135




believe they owned the land under a reasonable basis. Although the statute may capture and prevent cases of bad-faith adverse possession, where evidence is available, it may also unsettle titles thought to be long quieted. III. DETERMINING THE FUTURE: THE NEW STATUTE APPLIED TO OLD CASES The changes in the statute present new difficulties for adjudicating adverse possession cases. To determine how future claims may be decided, this Note looks to some past cases to determine how the new statute may be interpreted and applied. A. The Problem of "Reasonable Basis"

Walling v. Przybylo,138 which brought about the legislation, raises the foremost question of how to interpret the statute. In Walling, the Przybylos asserted that the developer of the subdivision pointed out the true boundary line to Walling.139 They argued that the Wallings subjectively knew the true boundaries, and thus intentionally occupied the Przybylo land. The Wallings countered, arguing that even if they did have knowledge, only an outright acknowledgement that the land was not theirs would bar their adverse possession claim.140 The Court of Appeals sided with the Wallings, declaring that "[c]onduct will prevail over knowledge."141 Under a purely objective reading of the statute, what the Wallings actually knew would be irrelevant. This reading follows from the intent of the legislature that a court not focus on the adverse possessor's belief142 and from the statute, which permits an adverse possessor to have knowledge.143 Thus, the Wallings' actual knowledge of the true boundaries would be of no consequence. Only the evidence they presented to prove their reasonableness would be relevant. This application, however, strongly conflicts with the general intent of the legislature, which was opposed to the holding of Walling.144 A more apt reading, then, would be the one in which

851 N.E.2d 1167 (N.Y. 2006). Brief of Respondent at 14-15, Walling I, 804 N.Y.S.2d 435 (App. Div. 3d Dep't 2005) (No. 97499). 140 Brief of Appellant at 12-13, Walling I, 804 N.Y.S.2d 435 (No. 97499). 141 Walling II, 851 N.E.2d 1167, 1170 (N.Y. 2006). 142 See Little Memo, supra note 112. 143 See supra note 120 and accompanying text. 144 See Little Memo, supra note 112.

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evidence of the adverse possessor's subjective belief is relevant to the reasonableness of her belief. Thus, in this case, if the Przybylos could prove that the Wallings actually knew the true boundaries of their land, a fact-finder would theoretically find the Wallings did not have a reasonable basis for their belief. This interpretation of the statute most closely conforms with the purpose of its supporters. B. The Problem of Mistaken Intent

Although the above "subjective" interpretation of the statute permits the outcome of Walling that the legislature intended, it also leaves those cases that applied an objective test where there was mistaken intent on the part of the adverse possessor in limbo. As the adverse possessors in these cases had no bad faith, it is unlikely that the legislature intended to block them from acquiring the land they adversely possessed. However, the cases raise the issues of when mistaken intent can be in good faith or reasonable, or whose mistake is relevant to adjudication. West v. Tilley145 presents a mistaken possession case where the court originally held that the land was adversely possessed. In 1925 and 1936, Tilley's father and husband, respectively, built and extended a wall across West's land.146 The two walls plus the northerly line of Tilley's property formed a triangle, which the trial court found that Tilley owned by adverse possession.147 The parcel was used continuously and openly for twenty-five years: There was a concrete shuffleboard erected on the land, and Tilley regularly cut the grass and pruned shrubs.148 Tilley testified that she was only enclosing her own property, and that she treated it as an owner throughout her occupation.149 Tilley, though, was mistaken in her possession--the land did in fact belong to West.150 Still, the court held that the lack of knowledge that the land belonged to another did not preclude a finding of adverse possession.151 From these facts, it is not clear if the court would find that Tilley had a reasonable basis for the encroachment. That the court found her possession to be an honest error, however, shows that she had no bad faith. Because she utilized the land as a true owner would, and because the purpose of the statute is to prevent bad faith adverse

145 146 147 148 149 150 151

306 N.Y.S.2d 591 (App. Div. 4th Dep't 1970). Id. at 592. Id. Id. at 593. Id. Id. Id. at 595.




possession, it is unlikely that the mistaken basis would be found to be unreasonable. This does not, however, mean that it was reasonable. Similarly, it is unclear what basis Tilley's father had for originally erecting the wall, whether he was mistaken, and to what extent that would affect Tilley's claim. Likewise, in Bradt v. Giovannone,152 Bradt was mistaken as to her true boundary, but used the land as a true owner would. The Bradts had lived on the lower level of a two-family house since 1937, and after 1945, when the ownership of the house changed hands,153 continually used a twelve-foot area abutting the house up to an already-existing fence.154 Bradt and the residents of the second unit planted roses and hydrangeas, mowed the lawn, had picnics, erected a small pool, and installed gym equipment on the disputed land.155 In 1963, the owner of the neighboring property, Giovannone, tore down the fence and built a new one at the actual property line.156 At trial, Bradt testified that she never intended to take the land away from anyone; she assumed the land was hers.157 The court held that the mistake would not bar a claim of adverse possession, as the possession was still visible and adverse--that, the court held, showed Bradt's intention to take the land.158 Under the new statute, this case should end in the same result. When the area became fully cultivated in 1945, the fence formed a rear boundary. An already-existing fence suggests that Bradt utilized the land in good faith, and provides at least one piece of objective evidence as a foundation for a reasonable basis.159 Indeed, it seems unreasonable for someone to believe a fence did not, in fact, form a boundary line. However, the question remains as

315 N.Y.S.2d 961 (App. Div. 3d Dep't 1970). Bradt bought the house from his landlord in 1959. Id. at 963. Id. Id. Id. at 964. Id. at 964-65. Id. Fatone v. Vona, 731 N.Y.S.2d 521 (App. Div. 3d Dep't 2001), presents another case where plaintiffs mistakenly occupied their neighbors' land. Here, when plaintiffs purchased their lot in 1964, the deed described the property and an easement over twelve feet of their neighbor's lot. Id. at 522. They first surveyed their land in 1999 and learned that a wall which they thought marked their east boundary actually was within the easement. Id. The land in question was terraced, three to four feet higher than defendant's property, and was bounded by a retaining wall. Id. at 523. Fatone's predecessors-in-title testified that the wall was there when they purchased the property in 1959, and they considered the retaining wall and fence to be the common boundary line with defendants' parcel. Id. As many of the cases discussed above, the court held that the mistaken encroachment would not bar title by adverse possession. Id. at 523-24. When plaintiffs bought the land in 1964, the retaining wall had been in place for at least five years. They lived like this for thirty-five years, and thus, it seems reasonable that this was the true boundary. In this case, although the purchase took place more than three decades prior to the action, the prior owners were available to corroborate the plaintiffs' story. Not every case will have such evidence available.

152 153 154 155 156 157 158 159



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to who built the fence, and if Bradt would need to present that evidence as a basis for her belief. Although there is some objective evidence in these two cases for a court to determine reasonableness, a court could also find a mistake unreasonable. Today, a jury might expect Tilley's father to have surveyed the land before he built the wall, or Tilley's husband before he extended it. Another jury might find it obviously reasonable to think a boundary exists at a fence. Thus, mistaken intent is no longer a discrete category of cases where the adverse possessor will always acquire the land. Instead, an adverse possessor who mistakenly encroached on someone else's land will have to prove that the mistake was reasonable. This not only overturns Walling, but also more than forty years of Appellate Division precedent.160 C. The Problem of Evidence

An obvious difficulty in applying the new statute in any case is due to the requirement of presenting evidence, especially when that evidence consists primarily of oral statements where the existence and credibility of witnesses is in question. Consider Brand v. Prince,161 where the parties owned neighboring lands, between which was a tenacre parcel. At trial, witnesses testified that from 1945 to 1961, the parcel had been in use by plaintiff's predecessors, in conjunction with their tenancy and then ownership of the adjoining parcel.162 When Brand purchased the land, the sellers relayed that the disputed area was included in the purchase.163 In this case, it seems obvious that if Brand took ownership of the land, with knowledge that the parcel was included in the purchase, he could maintain that he had a reasonable basis that the land was his. However, there is again the question of how much reliance a successor can place in the statements of his predecessor. Would Brand need to present evidence of his predecessors' actions, words, and reliability? That Brand could present evidence of this conversation is precisely what is problematic with the statute. As it requires a court to focus on whether there was reasonable basis for the belief that the land was the adverse possessor's,164 Brand would have to present evidence dating back to 1945. Here, there were witnesses still alive to testify to his predecessors' use of the land. At the time of trial, this was over twenty

160 161 162 163 164

See supra Part I.B.2. 324 N.E.2d 314, 315 (N.Y. 1974). Id. at 316. Id. N.Y. REAL PROP. ACTS. LAW § 501(3) (McKinney 2008).




five years earlier. If Brand was not able to present those witnesses, he would lose his land, even though he and his predecessors utilized the land productively for decades. This highlights the danger of a statute that requires evidence of reasonableness, as opposed to just evidence of ten years of observable behavior. D. The Lack of Clarity

Applying the new doctrine to some cases presents clear examples of difficulties in interpretation or application. Others present clear examples of how the courts will have to create completely new case law. The following cases illustrate how different courts will have to develop the law, since the legislature's intent gets lost in the facts. Guardino v. Colangelo165 presents another case where neighbors are mistaken in their boundary lines. In 1974, the original landowner filed a subdivision map, which depicted a cul-de-sac and private roadway leading to a public highway.166 The following year, he conveyed one of the four parcels via deed to Guardino, which referred to the filed map and the cul-de-sac, and granted an easement over the private roadway.167 Thereafter, the original grantor, without the aid of a surveyor, built the cul-de-sac in the proximity of the mapped location, but not at the exact site.168 Soon thereafter, Guardino, also without the aid of a surveyor, built a house based on the location of the cul-desac.169 However, the house was built entirely outside the property lines.170 Guardino eventually had a survey taken in 1993, and finally learned of the mistaken location of the house.171 That same year, Colangelo, with full knowledge of Guardino's encroachment bought one of the other subdivided lots.172 Guardino sued to quiet title, and the court held that the mistaken possession did not bar a claim of adverse possession.173 This case highlights the problem with the reasonable-basis test. First, Guardino clearly had a mistaken belief as to where the boundaries of the property were. The basis of that belief was the physical location of the cul-de-sac, which one could argue was reasonable. However, if Guardino had surveyed the land in 1977, instead of 1993, the entire

165 166 167 168 169 170 171 172 173

691 N.Y.S.2d 664 (App. Div. 3d Dep't 1999). Id. at 665. Id. at 665-66. Id. at 666. Id. Id. Id. Id. Id.



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lawsuit could have been avoided; a fact a jury may find to make the possession not reasonable. Furthermore, Colangelo's hands were unclean, since he knew Guardino had encroached on the land before he purchased it. In light of the objectives of the statute, including to dissuade bad faith,174 the parties in this case are seemingly reversed. Colangelo purchased the property in bad faith, knowing someone else's house was on the land, whereas Guardino made a good-faith mistake. If the fact that Guardino could easily have determined the mistaken boundaries of the land if she had surveyed it could be used to rebut her evidence of a reasonable basis, she might lose. As Senator Little stated,175 a person should not be encouraged to possess land that she knows is not hers. Here, Colangelo attempted to possess land--albeit through a legitimate purchase, as opposed to adverse possession--that technically was Guardino's under the old adverse possession statute. Thus, the situation could exist where a good-faith possessor cannot provide a reasonable basis, and subsequently a bad-faith purchaser could commence litigation to extract a settlement. Although this scenario sounds unlikely, based on Guardino, it is nonetheless possible.176 As mentioned previously177 the new statute also raises implications for tacking. An illustration is Hall v. Sinclaire,178 where the plaintiffs sued their neighbors to remove a one-hundred-seventeen square foot portion of an encroaching driveway.179 At trial, the defendants' predecessor-in-interest testified that she always believed that the driveway was entirely on her land.180 However, the defendants became aware of its encroaching nature when they surveyed the property in 1993 around the time of purchase.181 In 2001, the defendants erected a fence around the entire circular driveway, and the action ensued. The

See supra note 105 and accompanying text. See supra note 112 and accompanying text. Since a court would not eject Guardino from the property because of the considerable investment she made, it would likely apply a liability rule and require Guardino to purchase the encroached portion of property from Colangelo. See Stewart E. Sterk, Property Rules, Liability Rules, and Uncertainty About Property Rights, 106 MICH. L. REV. 1285, 1319-23 (2008). 177 See supra note 135 and accompanying text. 178 826 N.Y.S.2d 706 (App. Div. 2d Dep't 2006). 179 Id. at 707. Prior to 1968, the properties were part of a larger parcel on which a nursing home was located. Id. During that use and until 1977, there was a semi-circular driveway and circular drive that traversed both properties. Id. When the property was divided into two, the boundary line divided the driveway and the northern edge of the circular drive; the northern edge of the drive remained on the plaintiffs' property. Id. at 707-08. In 1977, the predecessors-ininterest to the parties entered into an agreement relinquishing their rights in any part of the driveway located on the others' property. Id. at 708. The parties split the driveway, and the defendants and their predecessors-in-interest continued to use the circular drive, of which a onehundred-seventeen square foot portion encroached onto the plaintiffs' property. Id. 180 Id. 181 Id.

174 175 176




Appellate Division held each party was mistaken as to where the true boundary line existed and that, through tacking, the defendants acquired title by adverse possession.182 Also, as the case was decided after Walling, the court further held that the defendants' claim was not defeated even though they were aware that the disputed area was owned by the plaintiffs.183 When Sinclaire took possession of the land, the disputed portion of the driveway had already inured to the sellers. However, when he took possession, he was aware, based on the survey, that the land did not belong to the sellers. This raises an interesting question for the courts. Under Walling, Sinclaire acquired the property based on either his own use, or by tacking on to the use of the sellers. Under the new law, this case raises many ambiguities present in the statute. If the court hews closely to legislative intent, Sinclaire's subjective knowledge based on his knowledge of the survey might preclude a finding that his belief was reasonable. But, this raises a more difficult question: Should an adverse possessor gain title where, although he did not have a reasonable basis for believing the land was his, his predecessors-in-interest had already fulfilled all of the requirements for acquiring title by adverse possession?184 IV. PRESUMING REASONABLENESS AND A CLAIM OF RIGHT Although the above cases portend inefficient land transactions and an increase in litigation, there are steps that courts could take in interpreting the new statute. Namely, the court should imply reasonableness and a subsequent claim of right in certain situations where there is little possibility of bad faith. Presumptions in the doctrine are not without precedent. Indeed, the courts have held that a presumption of hostility arises when the other elements are fulfilled.185

Id. Id. at 709. This specific inquiry is beyond the scope of this Note, but is one of the primary difficulties of applying the new statute. 185 See Nazarian v. Pascale, 638 N.Y.S.2d 661, 663 (App. Div. 1st Dep't 1996) ("The element of hostile possession does not require a showing of enmity or specific acts of hostility; rather, it can be inferred simply from the existence of the other four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity." (internal citations omitted)); Katona v. Low, 641 N.Y.S.2d 62, 64 (App. Div. 2d Dep't 1996) ("[I]f the use is open, notorious, and continuous for the full 10-year statutory period, a presumption of hostility arises." (internal citations omitted)); Sinicropi v. Town of Indian Lake, 538 N.Y.S.2d 380, 381 (App. Div. 3d Dep't 1989); City of Tonawanda v. Ellicott Creek Homeowners Ass'n, 449 N.Y.S.2d 116, 119 (App. Div. 4th Dep't 1982) ("In either case where all of the other elements are established by the one claiming title or easement under adverse possession or user, the first element of hostile possession or user will be presumed and the burden shifts to the record owner to produce evidence rebutting the presumption of adversity." (internal citations omitted)); see also supra

182 183 184



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Thus, once an adverse possessor proved actual, open and notorious, exclusive, and continuous possession, the courts presumed hostility/claim of right. It was then the opposing party's obligation to rebut that presumption of hostility.186 Although the new law requires evidence to prove a reasonable basis for the belief in ownership, claim of right and hostility can both be presumed just as they used to be. In situations where it is likely that the adverse possession was in good faith, it follows that a presumption of adversity, reasonableness, and a claim of right is not adverse to the spirit or intent of the new statute. First, courts could presume a claim of right where the adverse possessor has a survey confirming her adverse use of the property. By presuming reasonableness with the existence of a survey, courts will provide a safeguard to improvers and purchasers prior to their expenditure. If discrepancies arise following the survey they can be remedied without additional (non-litigation) expense. In instances where surveys may provide knowledge that adversely possessed land belongs to another, a court can balance the evidence and weigh that subjective knowledge against the other evidence presented to determine if the possession was still reasonable.187 Second, a presumed claim of right would certainly be advantageous, and not against the spirit of the new law, if courts presume reasonableness where land is demarcated by pre-existing boundaries. Thus, if John purchases Whiteacre, which is bordered to the north by a steep ravine, it would not be unreasonable to assume that is where the property ends.188 Or, perhaps there was a retaining wall on the east side of the property, which overlooked a three-foot drop.189 It would not be unreasonable for John to believe that the border was the retaining wall, instead of the actual boundary three feet to the west of the wall. These examples illustrate mistaken boundary cases that occur frequently. Because of the possibility of missing or hard-to-provide evidence, good faith adverse possessors may lose some of their property that they improved upon. Thus, these examples provide a category of cases in which even if proof of reasonableness is lacking, the objective conduct and the objective layout of the land should presume a claim of right. Third, the court could presume reasonableness where adverse possession is the result of general good-faith mistakes. Although

note 25. 186 Id. 187 This of course presupposes that courts will permit the introduction of evidence of subjective belief, even though the statute can be read to be requiring a solely objective test. See supra Part II.C. 188 See Birkholz v. Wells, 708 N.Y.S.2d 168 (App. Div. 3d Dep't 2000). 189 See Fatone v. Vona, 731 N.Y.S.2d 521 (App. Div. 3d Dep't 2001); supra note 159 and accompanying text.




mistaken possession was previously permitted under the hostility element,190 the redefinition of claim of right may change this.191 Since the legislature enacted the bill to prevent adverse possession where the adverse possessor had actual knowledge that the land was not hers,192 it would not frustrate the intent of the statute to presume reasonableness where a mistake could be proven. A court could make a preliminary determination that a possession was mistaken, as opposed to in bad faith, and this would raise the rebuttable presumption of a claim of right. Such a finding and the subsequent presumed reasonableness would not frustrate the intent of the legislature where there is no evidence of bad faith. By not impeding legislative intent, this system of presumptions for reasonableness and a claim of right in situations that arise frequently, specifically where surveys are taken and where the physical and topographical characteristics of the land suggest natural boundaries, would militate against some of the ambiguities that exist today under the statute. Presumptions such as these would ease the evidentiary burden on adverse possessors that have already spent time and money on their land. Actual owners would still be permitted to rebut the presumption by presenting evidence of objective conduct that failed to display a claim of right. Importantly, loosening the restrictions set by the reasonableness requirement would not increase the number of properties "lost" to adverse possession, as the specific facts and circumstances of each case would still be vulnerable to the requirements of open, actual, exclusive, and continuous use. CONCLUSION Although one can commend the legislature for trying to prevent the offensive use of adverse possession, the ambiguities and inefficiencies, which the new definition of claim of right portends, outweigh any abhorrent uses of the doctrine. Though the statute purports to curtail mischief between neighbors,193 any case adjudicated under the new statute will increase litigation costs because of the increased amount of evidence that must be presented. Moreover, the statute could create enmity between one neighbor, who purchased land that included a portion of adversely possessed property, and the actual owner, who could have lost the land to the neighbor's predecessor-in-interest. If the adverse possessor could not locate her predecessor-in-interest, she could

190 191 192 193

See supra Parts I.A., I.B.2 See supra Part II.C. See Little Memo, supra note 112. See id.



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possibly lose her purchased and bargained-for land, or have to pay to make the neighbor whole. These outcomes do not follow the legislature's intent, but are possible and likely. As there are no quick and easy fixes for the current statute, considering its overwhelming support in the legislature,194 the task for maneuvering the statute lies with the judiciary. Although there is no way to foretell how the judiciary will react to the changes until it encounters cases, one could doubt that it would overturn 200 years of case law, as the legislature intended. Instead, by utilizing presumptions, as they did prior to the enactment of the statute, the courts may ease the transition to a new doctrine while also effectuating the intent of the legislature.


The Senate voted 60-2 while the Assembly voted 140-2.


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