Legal Update: Court Reaffirms Critical Elements of Successful Adverse Possession Claims

This week we wanted to bring your attention to an interesting decision issued by the Appellate Division, Second Department which affirmed a Lower Court’s Order dismissing the Plaintiffs’ Complaint and cancelling a Notice of Pendency based, in part, on the fact that the Plaintiffs failed to provide sufficient evidence that they were entitled to “tacking” their time of possession of the property onto their predecessor in title’s time of possession to satisfy the statutory time period required to support a claim of Adverse Possession. 
The relevant facts of, as well as a link to, the case are set forth below.

The Plaintiffs own real property adjacent to a parcel of commercial real property owned by the Defendant which Plaintiffs acquired from New York Mortgage Servicing Corp. by deed August 30, 1994.  New York Mortgage Servicing Corp. had obtained title to the property via a referee’s deed in foreclosure dated February 24, 1993. On December 4, 2005, the Plaintiffs commenced an action seeking a determination that they obtained title by adverse possession to a portion of the Defendant's titled property measuring approximately 10 feet in width and 60 feet in length (hereinafter the disputed area), which the Plaintiffs used for parking, gardening, and to receive deliveries of heating oil.
 
A chain link fence ran across the Defendant's titled property, parallel to the Plaintiffs' house, such that the disputed area was on the Plaintiffs' side of the fence. The fence then continued along the boundary line between the Plaintiffs' and the Defendant's titled properties. The fence was 100 feet long; a 40-foot portion of the fence was on the boundary line between the Plaintiffs' and the Defendant's titled properties, while the remaining 60-foot portion was within the Defendant's titled property. In 2002 to 2003, the Defendant removed the portion of the fence that ran within its titled property. The Defendant submitted evidence that it then covered the disputed area with a cement slab. In 2006, the Defendant extended the building on its property over the entire disputed area.  The Lower Court granted Defendant’s Summary Judgment motion dismissing the Complaint and canceled the Notice of Pendency and this appeal ensued.
 
In reviewing the record on appeal, the Appellate Court, reaffirmed the elements required to support a claim of Adverse Possession as follows: “
possession was-
(1) hostile and under [a] claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the statutory period of 10 years" (citations omitted).  The Appellate Court further reaffirmed that a “party claiming adverse possession may establish possession for the statutory period by "tacking" the time that the party possessed the property onto the time that the party's predecessor adversely possessed the property (see Stroem v Plackis, 96 AD3d 1040, 1042-1043 [2012]). Tacking is permitted where there is an "unbroken chain of privity between the adverse possessors" (Belotti v Bickhardt, 228 NY 296, 306 [1920]). For tacking to apply, a party must show that the party's predecessor "intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed"  
 
The Court further noted that the Plaintiffs had conceded that they did not possess the disputed area for the 10-year statutory period and rejected Plaintiff’s argument that they were entitled to “tack the time of their predecessors' possession onto their time of possession” as the Affidavits submitted in support of the “tacking” claim failed to describe "said portion" of the property or indicate the length of time that the previous owner maintained the garden or that their predecessors adversely possessed the disputed area and intended to and actually transferred possession to the Plaintiffs or that adverse possession vested in one of their predecessors prior to the foreclosure.

To view this case, click the link below: 
https://www.nycourts.gov/reporter/3dseries/2015/2015_06902.htm