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Possession isn't 9/10ths of the Law All the Time!
Posted at Great Northeast Queens News by John Maniec
Mar. 25, 2008
Categorized in: Real Estate Legal Issues
Tagged with: adam mandelbaum esquire, justice never sleeps, practical legal issues

This legal discussion is presented as courtesy by W. Adam Mandelbaum, Esquire -- Attorney at Law.  His website is http://JusticeNeverSleeps.Net and his office phone number is: (516) 624-0240.

  POSSESSION ISN'T 9/10ths OF THE LAW ALL THE TIME

 
It is not uncommon in a real estate transaction for a title report to come back with a survey inspection that shows a fence or some other structure is set back on the property from behind a boundary line. 
If there is more than a foot's difference, the title company will not insure the space between the fence and the boundary line because of a possible "adverse possession" claim of the adjoining property owner to that portion of the parcel. (Unless a boundary line agreement is obtained from the neighbor making no claim to that portion).
 
Let's look at the Real Property Actions and Proceedings Law for more information:

NY CLS RPAPL § 522 (2008)

 


§ 522. Essentials of adverse possession under claim of title not written

For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others :

1. Where it has been usually cultivated or improved .

2. Where it has been protected by a substantial enclosure .

To satisfy this element, "[s]ubstantial and obvious alteration is required. Limited activities such as cutting the grass, raking, clearing debris, and even planting or removing a few trees are thus insufficient."

Perfito v. Einhorn Westchester County March 5, 2008
 
REAL WORLD RULE:  If there is a court challenge to ownership of land between a structure setback on a property, (bushes, fences) and a boundary line, the fact that your neighbor cut the grass and raked the leaves is not, in and of itself, sufficient (after ten years) to make him the owner of the parcel.
WHAT DO YOU DO:
A.  If you are a seller, get the neighbor to sign a boundary line agreement waiving any claim to the property.
B.  If you are a real smart feller, survey your property to see if there are any variations between structures and boundary lines in excess of one foot.  Do this before you sell, and it will be easier to fix the problem, either by relocating the fence or bushes, or by dealing with your neighbor to get a written boundary line agreement BEFORE you are under pressure of a contract to sell.
C.  If all else fails, bring an action to "quiet title" to the portion of the property in question.
 
BROKERS SELLERS AND BUYERS:  HEED THIS WELL, YOU WILL SEE IT AGAIN ON ONE OF YOUR TITLE REPORT SURVEY INSPECTIONS.
 
Thinking about selling, buying or brokering real estate, now's the time to call experienced counsel before it's too late. Dial 516 624-0240
===================================
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