Important Alert for NY Homeowners: New Court Ruling on Adverse Possession

This week we wanted to bring your attention to an interesting case decided in the Appellate Division, 2^nd Department which decision affirmed a Lower Court’s Order granting Defendant’s motion to dismiss Plaintiff’s complaint that sought a judgment declaring that the Plaintiff had successfully acquired, via Adverse Possession, property owned by the County of Westchester. The relevant facts of, as well as a link to, the case are set forth below.

In or about December 2021, Plaintiff filed a complaint against the County of Westchester (“Defendant”) seeking, among other relief, a judgment declaring, under a theory of Adverse Possession, that Plaintiff had exclusive property rights and legal title to a parcel of property due to the fact that Plaintiff’s predecessors in interest owned and/or occupied the same parcel of land. In response, the Defendant moved to dismiss the Complaint arguing that the property had been acquired by the Parkway Commission, in a “Governmental Capacity,” for use as a public park and parkway, and therefore could not be adversely possessed. The Defendant also asserted that the Plaintiff should be classified only as a licensee of the property since the Parkway Commission had issued a permit to one of the Plaintiff’s predecessors in interest back in 1919 allowing the construction of a cabin thereon. The Supreme Court granted the Defendant’s motion so far as it sought dismissal pursuant to CPLR 3211 (a) (a). In affirming the Lower Court’s Order, the Appellate Division, 2^nd Department reasoned and held as follows:

“[I]t is well settled that a municipality cannot lose title through an adverse possession to property which it owns in its governmental
capacity, or which has been made inalienable by the statue” (citations omitted). “Conversely, when a municipality holds real property in its proprietary capacity there is no immunity against adverse possession” (citation omitted). ….

“Contrary to the plaintiff’s contention, the County established that it dedicated the property to a public use and used the property for a public purpose, and that, therefore, the County owns the property in a governmental capacity, even though it allows the plaintiff to use the property as a licensee (citations omitted). Inasmuch as the property was held by the County in its governmental capacity, the County utterly refuted the plaintiff's claim that the property was adversely possessed (citation omitted).”

https://www.nycourts.gov/reporter/3dseries/2024/2024_04055.htm