Adverse Possession Outdoor Area
Today we wanted to highlight a recent Third Department case where the Appellate Court overturned a Supreme Court Order granting Summary Judgment to the Plaintiff who claimed adverse possession of a portion of an easement which was enclosed by a fence and used for outdoor seating and dining. The facts of the case are summarized below, and the decision turned on a question of fact as to whether the use of the easement for enclosed outdoor seating and dining was permissive (as opposed to hostile) and under a claim of right.
The undisputed evidence submitted to the lower Court determined that a portion of an ingress and egress easement over adjoining property owned by a Defendant has been enclosed by a fence and purportedly used for outdoor seating and dining since 1997. Plaintiff, the owner of adjoining property benefitted by the easement, sought an Order directing the Defendant-owner and its lessee to remove all structures and encroachments on the easement area and declaring that the Defendants were obligated to maintain the easement free of obstructions. The Supreme Court, Saratoga County, granted the Plaintiff’s cross-motion for summary judgment, but the Appellate Division, Third Department, reversed the lower court’s ruling. Although the Defendants “made a prima facie showing that [their] and their predecessors’ use of the disputed portion of the easement was actual, open, notorious, exclusive and continuous for the prescriptive period [citations omitted]…a question of fact remains as to whether defendants’ predecessors in interest had implied permission to use a portion of the easement for enclosed outdoor seating and dining [citation omitted].”
CJA Realty Holdings, LP v. 14 Phila Street LLC, 2022 NY Slip Op 04208, decided June 30, 2022, is posted at https://www.nycourts.gov/reporter/3dseries/2022/2022_04208.htm
This case is a reminder that granting permissive use of any portion of real property can derail a claim for adverse possession. As always, the
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