Adverse Possession
Permits a trespasser’s possession of real property to ripen into ownership through the passage of time. In New York, the following requirements must exist for no less than ten years (10 years) :
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- Open & Notorious Possession : an adverse possessor must be using the property publicly, and not hiding his or her use.
- Hostile Possession : an adverse possessor occupies the property without (i) offering to purchase it from the owner, (ii) the owner’s permission to use the property, or (iii) acknowledging to anyone that the owner has title to the property.
- Tip! If you notice that your neighbor is using part of your property regularly, it may be wise to give written permission to use the property, to protect against adverse possession in the future.
- Exclusive & Continuous Possession : the ten year requirement must be unbroken and continuous; the adverse possessor may leave and come back for short periods, but the use of the property cannot be intermittent.
- Actual Possession : the adverse possessor must actually be using the property as if it was his or her own.
- Good Faith Claim of Right : the adverse possessor must demonstrate that he or she took possession with an objective good faith belief that he or she owned the property. If the adverse possessor knew that the property did not belong to him or her, then he or she cannot establish adverse possession.
- No Disability : the owner was not under any disability (ex. infant or mental incompetent) when the adverse possession began.
- Example : James and Eliza live next to each other. There is no dividing fence between their yards. James builds a shed that is actually 15 square feet onto Eliza’s side of the property. Eliza does not say anything. James uses the shed as if it were on his own land. James does this for 12 years. James may establish that he “owns” the land on Eliza’s property which his shed was encroaching on. Eliza could have stopped James by asking him to remove his shed, or to sign an agreement indicating their mutual consent to the arrangement.
