REASONABLENESS IS UNREASONABLE:
A NEW JURISPRUDENCE OF NEW YORK
ADVERSE POSSESSION LAW
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?,” http://www.nyrealestatelawblog.com/2006/06/adverse_possession_license_
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, http://www.nyrealestatelawblog.com/2006/10/adversepossession_update.html
(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.
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(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 . . . .”).
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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
29
30
31
32
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
38
39
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,
46
47
48
49
50
51
52
53
54
55
56
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,
http://www.nycourts.gov/courts/appellatedivisions.shtml (last visited June 25, 2010).
61 306 N.Y.S.2d 591 (App. Div. 4th Dep’t 1970).
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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
62
63
64
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).
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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
78
79
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
90
91
92
93
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.”).
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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), http://www.nysba.org/Content/ContentFolders/Legislation/
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
http://www.orps.state.ny.us/legal/legsum07/legsum07.pdf.
109 See id.
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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
110
111
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), http://www.nysba.org/Content/ContentFolders/
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.
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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
127
128
129
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.
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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
134
135
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.
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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
138
139
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.
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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
152
153
154
155
156
157
158
159
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.
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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).
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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
174
175
176
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.
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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
182
183
184
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
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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.
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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.
194
The Senate voted 60-2 while the Assembly voted 140-2.