Long Island Weekly TUESDAY, JUNE 17, 2003 Z ONING AND L AND U SE P LANNING Adverse Possession Doctrine Has Modern-Day Relevance A fter Crystal Bay Construction, Inc., began building homes on property in Suffolk County that it had purchased from Alexander and John Poulianos, Richard Rowland brought suit against Crystal Bay. The complaint filed by Mr. Rowland, who owned property adjacent to the property Crystal Bay had purchased, alleged that Crystal Bay was trespassing on his property. In a second cause of action, Mr. Rowland claimed that he had obtained title to the property on which the developer was building by adverse possession. The Suffolk County Supreme Court granted Crystal Bay’s motion for summary judgment dismissing the cause of action alleging adverse possession, and Mr. Rowland appealed. Earlier this year, the Appellate Division, Second Department, affirmed the trial court’s ruling, finding that Mr. Rowland had failed to raise a triable issue of fact in opposition to the motion as to whether his use of the property satisfied the statutory requirements for adverse possession.1 Two Tests Adverse possession is not just a law school concept. Indeed, the issue arises with more frequency than one might expect,2 and is well-established in both the common law and New York statutory law. Simply put, adverse possession is a doctrine by which continuous possession and use of real property can ripen into fee simple title. To acquire title to real property by adverse possession, New York common law requires the Anthony S. Guardino is a partner with Farrell Fritz, and is resident in the firm’s Melville office. ANTHONY S. GUARDINO possessor to establish that the character of the possession was “hostile and under a claim of right, actual, open and notorious, exclusive and continuous”3 for a period of 10 years.4 Reduced to its essentials, this means that there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period.5 The requisite continuity of possession may be shown by combining or “tacking” one’s adverse possession or use to that of a predecessor in title in order to establish the statutory period.6 Because the acquisition of title to land by adverse possession is not favored under the law,7 these elements must be proven by clear and convincing evidence.8 Article 5 of the Real Property Actions and Proceedings Law establishes statutory requirements of an adverse possession claim that must be proven by clear and convincing evidence as well. Under the RPAPL, a claim of adverse possession under a written instrument (such as a deed) or a judgment requires the claimant to demonstrate that the property has been “usually cultivated or improved,” “protected by a substantial [e]nclosure,” or, if not enclosed, “used for the supply of fuel or of fencing timber, either for the purposes of husbandry or for the ordinary use of the occupant.”9 Where there has been an actual continued occupation of property under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment, the claimant must demonstrate that the property has been “usually cultivated or improved” or that it has “been protected by a substantial [e]nclosure.”10 The type of enclosure and cultivation or improvement necessary to satisfy the statutory requirements for adverse possession varies with the nature, character and location of the property.11 The difficulty in successfully asserting an adverse possession claim is illustrated by the recent decision of the Appellate Division, Second Department, in Moll v. Feldt.12 The case arose out of a dispute as to the ownership of a small triangular piece of property, about 50 feet by 130 feet, located on the northeast corner of a lot owned by Urich Moll. Mr. Moll brought suit to quiet title, seeking a judicial determination as to the true owners of the disputed property. The defendants counterclaimed, asserting that they possessed superior title to the disputed property by way of adverse possession based on their cultivation and improvements to the property. The Supreme Court, Suffolk County, granted Mr. Moll’s motion for summary judgment, and the defendants appealed. The Second Department found that the evidence submitted by Mr. Moll established that his predecessors in title had hired a company, among other things, to annually clear leaves from trees located on the disputed property and to spray those trees with insecticide four or five times per year. Moreover, the appellate court emphasized, the defendant Edward Feldt admitted that NEW YORK LAW JOURNAL there were no fences anywhere on his property. Thus, the Appellate Division found, the defendants’ possession of the disputed property was not exclusive as required for title to pass by adverse possession. The Second Department concluded that “[t]he evidence of the defendants’ cultivation of and improvements to the disputed property, even taken together with the statements by the defendant Edward Feldt to the effect that he never observed [Mr. Moll’s] predecessors in title perform any maintenance on the disputed property, were insufficient to demonstrate the existence of a triable issue of fact as to the exclusivity of the defendants’ possession of the disputed property.” The Government Exception As a general rule, a municipality cannot lose title through adverse possession to property that it owns in its governmental capacity, or that has been made inalienable by statute.13 However, when a local government holds real property in its proprietary capacity, there is no immunity against adverse possession.14 The recent Second Department decision in Monthie v. Boyle Road Associates, L.L.C.15 focuses on this distinction. The case arose after the Comsewoque School District acquired title in fee simple to a parcel of land consisting of 48 acres in the Town of Brookhaven sometime in the late 1960s. The parcel was bordered by Boyle Road. Subsequently, the school district built the Boyle Road Elementary School on the site. The school buildings, playground and athletic fields used only 19 acres, with the remaining 29 acres remaining undeveloped and consisting primarily of shrubs and second-growth trees. In 1986, the school district offered to sell the 29-acre parcel. The notice described the site as “real property known as vacant land at the Boyle Road School site,” and declared that the land was zoned “Residential-B1.” The offer also stated that the board of education was “offering to sell … vacant land which [is] no longer required for school purposes.” The district did not sell the property until Aug. 20, 1998, when Boyle Road Associates L.L.C. acquired title. Apparently, the 29-acre parcel remained in its natural state from its original offering in 1986 until 1998. Additionally, although the 29 acres were not TUESDAY, JUNE 17, 2003 partitioned or otherwise subdivided from the 19 acres devoted to the elementary school, the district installed and maintained a cyclone fence that partially separated the school’s playing fields from the wooded acreage sometime prior to 1983. Following Boyle Road Associates’ acquisition of the 29 acres, it was discovered that several homeowners with properties contiguous to the 29 acres had been using portions of the property for many years. A number of homeowners brought suit against Boyle Road Associates, alleging that they had acquired title to the disputed portions of the property by adverse possession. Boyle Road Associates moved for ------------------------------------------------ Adverse possession is not just a law school concept. Indeed, the issue arises with more frequency than one might expect, and is well-established in both the common law and New York statutory law. ------------------------------------------------ summary judgment. Suffolk County Supreme Court began its analysis by stating that, as a matter of law, a municipal corporation cannot lose title to real property through adverse possession when the land is held in a governmental capacity. The court continued by noting that a municipality can, however, lose property by adverse possession when the land is held for a proprietary purpose rather than a governmental one. The court concluded that an issue of fact existed as to whether the 29-acre parcel actually was held in a proprietary capacity that would serve to give validity to the plaintiffs’ claim of adverse possession. The court found that there was no evidence that the parcel had been held in a governmental capacity since 1971, and it specifically noted that in listing the property for sale, the school district had referred to the 29-acre parcel as the “Boyle Road Residential Site” and had indicated that this vacant land was “no longer required for school purposes.” Boyle Road Associates appealed. The Second Department affirmed, upholding the trial court’s decision that there were issues of fact as to whether the 29-acre parcel retained its governmental character even after the school district had concluded that the property was no longer necessary for a governmental purpose. The Second Department emphasized that it was uncontroverted that the parcel had remained in the same undeveloped condition from the time the school district had purchased the land until its sale in 1998, and that the school district had taken affirmative action by conducting a district-wide referendum to sever that portion that was no longer needed for school purposes so that it could be sold. Conclusion Numerous legal issues can arise in adverse possession disputes, from whether a tenant has the capacity to adversely possess land belonging to someone other than his or her landlord (such as an adjoining landowner)16 to the type of “cultivation” or “improvement” sufficient to satisfy the RPAPL’s requirements.17 Although not a frequent claim, adverse possession can present complicated factual questions as well. •••••••••••••• ••••••••••••••••• (1) Rowland v. Crystal Bay Construction, Inc., 301 A.D.2d 585 (2d Dept. 2003). (2) Recently reported decisions in Long Island cases involving claims of adverse possession include: Oak Ponds, LLC v. Willumsen, 295 A.D.2d 587 (2d Dept. 2002); Moll v. Feldt, 289 A.D.2d 462 (2d Dept. 2001); Matter of Incorporated Village of Garden City v. Cathedral of the Incarnation in the Diocese of Long Island, 289 A.D.2d 406 (2d Dept. 2001); Gold v. Hui-Yin Huang, 285 A.D.2d 580 (2d Dept. 2001); Monthie v. Boyle Road Associates, L.L.C., 281 A.D.2d 15 (2d Dept. 2001). For discussions of the law of adverse possession by the New York Court of Appeals, see, e.g., Myers v. Bartholomew, 91 N.Y.2d 630 (1998); Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154 (1996). (3) Brand v. Prince, 35 N.Y.2d 634, 636 (1974). (4) See, RPAPL 501. (5) See, Ray v. Beacon Hudson Mountain Corp., supra. (6) Brand v. Prince, supra; Monthie v. Boyle Road Associates, L.L.C., supra. (7) See, e.g., Belotti v. Bickhardt, 228 N.Y. 296, 308 (1920). (8) Van Valkenburgh v. Lutz, 304 N.Y. 95, 98 (1952). (9) See, RPAPL 512. (10) See, RPAPL 522. (11) Gorman v. Sherman, 299 A.D.2d 451 (2d Dept. 2002). (12) 289 A.D.2d 462, supra. (13) See, e.g., City of New York v. Wilson & Co., 278 N.Y. 86, 96 (1938); Casini v. Sea Gate Ass’n, 262 A.D.2d 593, 594 (2d Dept. 1999). (14) See, e.g., City of Tonawanda v. Ellicott Creek Homeowner’s Assn., Inc., 86 A.D.2d 118 (4th Dept. 1982). (15) 281 A.D.2d 15, supra. (16) See, e.g., Spiegel v. Ferraro, 73 N.Y.2d 622 (1989). (17) See, e.g., Birnbaum v. Brody, 156 A.D.2d 408 (2d Dept. 1989). This article is reprinted with permission from the June 17, 2003 edition of the NEW YORK LAW JOURNAL. © 2003 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information contact, American Lawyer Media, Reprint Department at 800-888-8300 x6111. #070-06-03-0025