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Queensbury Woman Lost Legal Dispute, Turns to Lobbying
Bill Passed by Both Houses Would Stop Adverse Claim if a Boundary Survey Exists

Possession is a far older concept than ownership. This ancient concept is reflected in the law of adverse possession, where open occupancy of land that belongs to someone else for a specific period of time recognized by state law can allow the title to be transferred to the individual who adversely occupies the property.

It is because of the law of adverse possession that Scott and Kathleen Walling of Queensbury in Warren County, N.Y. legally acquired a narrow strip of land that was part of the deeded property of their neighbors Paul and Denise Przybylo. The Wallings, who purchased their unimproved lot in 1986 and built a house and swimming pool, began improving and using the strip of land that was part of the neighboring property in 1987. They started with bulldozing and depositing fill and topsoil, digging a trench and installing PVC pipe to carry water from their eaves and downspouts and under the disputed parcel, ultimately discharging water over the disputed parcel. They constructed an underground wire fence to enclose their dog and continuously mowed, graded, raked, planted and watered the grassy area in dispute. They installed a post and bird house on the disputed territory that have remained in place.

Meanwhile, the Przybylos bought their lot in 1989 and built their house in 1991, but did not have their property surveyed until 2004, when they discovered that they had title to a strip of land that the Wallings occupied. When the Wallings heard of the survey and were unable to settle with their neighbors, they went to court to quiet title. The Warren County Supreme Court granted the Wallings' motion for summary judgment quieting title to the land. One of the court's observations was that although the defendants, the Przybylos, would not admit it, both sides to the dispute were mutually mistaken as to the true location of boundary line.

Even so, when the Court of Appeals, the highest court of the State of New York, finally ruled in favor of the Wallings in June 2006, Justice G. B. Smith discredited the defendants' argument that there is no claim of right when the adverse possessor has actual knowledge of the true owner at the time of possession. "…longstanding decisional law does not support this position… By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors."

"Adverse possession, although not a favored method of procuring title, is a recognized one. It is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable," stated the high court's decision.

"Plaintiffs possessed the disputed parcel of land as early as 1986 in an open and notorious manner, hostile to the interests of the title owners and continuously for 20 years, ten of which occurred after defendants moved into their residence," the court held, referring to the ultimate element in the rise of title through adverse possession being the "acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period."

The high court's decision also reviewed the essential factors in the success of the claim of adverse possession, (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the entire period. In New York, the statute of limitations holds that after ten years possession can ripen into absolute ownership. The original statute of limitations in 1623 was 20 years, still a common period among the states.

Even before she lost the case, Denise Przybylo started lobbying the legislature to change the law of adverse possession. She felt that it was unjust that a claim of right could be exerted on her property. She was quoted by the Associated Press in February 2006 saying that she wanted the time limit changed to sixty years.

Both legislators whose districts include Queensbury introduced bills to change the law of adverse possession. The bill framed by Assemblywoman Teresa Sayward (R, Willsboro) would have made two changes, (1) that the statute of limitation for an adverse possession proceeding which is not based on a written instrument would be twenty years and (2) that the grounds for adverse possession would not allow the adverse possessor to take hold of the premises if he knew that his claim of title was invalid or void. The latter clause is meant to establish that possession of a survey that does not substantiate the claim of the adverse possessor would prevent the use of adverse possession to quiet title.

The twenty-year requirement, which would have restored the historical tradition, was dropped when the bill was combined with a Senate bill, but the radical new requirement intending to invalidate adverse possession if a survey exists was retained.

The bill sponsored by Senator Elizabeth O'C. Little provides that title pursuant to adverse possession would be defeated if the claimant has knowledge that another person is the title owner of the property.

When the Senate approved Sen. Little's bill (S 5364), she issued a press release on June 19, 2007 stating, "Changing New York's adverse possession law is about fairness." She said that the Przybylos had argued that Walling had knowledge that he did not own the disputed strip of land, but she did not mention that the court stated that both sides were mistaken about the boundary location. But the court had made it clear that the plaintiff would succeed under the law of adverse possession even if his occupation were a deliberate adverse effort to possess the occupied land.

Nor did the senator's press release mention the beneficial function of adverse possession to quiet title. It simply stated that the court's decision allowed the person to take another person's property if the technical requirements of the law, such as open and notoriously improving a parcel of land for ten years, have been met. However, the court's decision had enumerated the several traditional stringent tests that the adverse occupation must pass to succeed.

Sen. Little declared in the press release that she did not think that court's decision was reasonable, "The Court's decision was based on case law," she stated. "I think the standard is obsolete."

When she was interviewed in the Glens Falls Post-Star on June 19, Sen. Little remarked about the new bill, "It's really the taking of someone's property. Even if someone thinks it's theirs, if there's a survey, it prevails."

An Associated Press article that appeared in the Plattsburgh Press Republican on February 20, 2006, quoted this writer, Carol LaGrasse, saying that "she sympathized with the Przybylos but doesn't want to see the law changed."

"However peculiar it may seem to someone who loses under the common law, I hope the law is never overturned," this writer was quoted at the time. "We just really don't like to see common law muddled."

The New York State Court of Appeals upheld the common law, which, to this day, serves the need to fairly settle title disputes, except that the ten year statute of limitations could be increased to more nearly reflect historic practice. The bill that combines the Senate and Assembly versions of the Little/Sayward adverse possession legislation is currently in the Senate pending being forwarding to Gov. Spitzer's for his review and signature. This bill could accomplish the very result that I feared. It would add a muddy, subjective standard by eliminating the use of claim of right under adverse possession to quiet title if a survey exists.

There are many reasons for the inadvertent or deliberate need for adverse possession, with a reasonable statute of limitations, even when a survey exists that theoretically should be known to the adverse claimant. First, a survey may contain at least one significant error. Second, neighbors may have conflicting surveys or the adverse possessor may have two or more surveys, in conflict with each other. Third, the adverse possessor may have never seen the survey or taken possession of the survey, for a number of reasons. Fourth, the adverse possessor may never have read or may not be able to read the survey drawing and/or it may never have occurred to him to compare it to landmarks that he understood marked the boundaries. Fourth, and most importantly, the adverse possessor may have made an error and inadvertently invested in construction (sometimes essential and which he cannot afford or may find it impossible to replace), years of work, improvements, and maintenance of the property.

With the proposed changes to the adverse possession law, the ability of the claimant to bring an action to quiet title in all these circumstances, as well as others, would be eliminated. There are good reasons that are still valid today for the law of adverse possession as upheld in the highest court of New York. Let's not lightly set this body of traditional law aside.

By Carol W. LaGrasse
August 3, 2007

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© 2007 Carol W. LaGrasse
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