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A Taste of a Future under New Law Governing Boundary Disputes
Court Ignores Old Boundary Wall
Wealthy Property Owner Expands to Walls of Neighbor's Long-Standing House


by Carol W. LaGrasse, Revised February 2014

What good is an old stone boundary wall, as long as the legislature sits? This is what retired cop Bill Cullen could feel after the ill-thought, new "adverse possession" law was railroaded through the legislature over three years ago. A singular premise of the new law was, in effect, applied by U. S. District Court Judge Cathy Seibel of the Southern District of New York, Westchester County, when Mr. Cullen tried to stop his neighbor from invading his shorefront property and house on the Long Island Sound in the Village of Pelham Manor.

For seventy years, Bill Cullen and the property owners before him peacefully and openly occupied the land up to the old stone wall. His seventy-year-old single family frame house is not unlike other houses in the area dating from that period. In fact, an addition was added toward the stone wall.

Unnoticed to him, there were questionable property lines made over the years, with different meets and bounds, one depicting a property line a few feet beyond the wall into his property, and even into the actual location of his house. Even so, he should have had nothing to fear because of the classical law of adverse possession.

The law of adverse possession has meant since time immemorial to make property owners secure in the land that they openly occupy. In New York State the time period to establish adverse possession is ten years. If the neighbor of the Cullen family had hired a surveyor and discovered that there had been an error years earlier in laying out the boundary lines and building the stone wall, any state or federal court in New York should have routinely recognized the stone wall as the boundary line under state law Indeed, in the professional practice of surveying, old stone walls can have the effect of trumping written deeds and must always be surveyed and recorded on the boundary survey drawing.

But an amazing, nearly unanimous vote of the state legislature attempted to change the age-old law in 2007 so that the surveyed bounds could supersede the occupied bounds in most situations. This bill flew through the legislature in the wake of a 2006 decision by New York State's highest court that was depicted to have done injustice to property owners when the law of adverse possession was applied. The case was that of G. Scott Walling and Kathleen Walling v. Paul F. Przybylo and Denise M. Przybylo in the town of Queensbury, Warren County, where the two couples had a dispute over a strip of land that the Wallings occupied between their houses.

The dispute began when the Przybylos discovered that the deed to their property showed that they had been sold the strip as part of their parcel. However, the Wallings had planted and maintained shrubbery on the property for eighteen years as though it were theirs. In fact, for many years the Wallings believed that it was their land, and carefully adhered to the bounds indicated by a large rock that had been pointed out to them by the previous owner. The neighbors were unable to work out a compromise and the dispute landed in court.

Ruling in favor of the Wallings, the Appellate Division Third Department presented carefully reasoned legal analysis and detailed exposition of "over 160 years of binding precedent to support their determination," as noted in the Wallings' successful argument to the state's highest court, the Court of Appeals. The high court played according to the established rules, allowing adverse possession after ten years when the other conditions are present, and the Przybylos lost.

But Denise Przybylo launched a campaign to revise the law of adverse possession, presenting herself and her husband as victims because, in her words, the court had ruled that "it did not matter what the deed said." State Senator Elizabeth Little, whose district includes Queensbury, took up Mrs. Przybylo's cause and sponsored a bill to change the law. Quoted in 2007 in the Glens Falls Post-Star, Sen. Little said of adverse possession, "It's really the taking of someone's property. Even if someone thinks it's theirs, if there's a survey, it prevails."

Expanding further, Sen. Little's aide said at the time, "The goal is to ensure that property stays in the hands of its rightful owner, the person that holds the deeds and pays the taxes."

The imagined injustice to the Przybylos was used to instigate almost every member of the legislature to fundamentally alter the ancient, and therefore supposedly "outdated," law.

The Real Property Law Section of the New York State Bar Association worked for months to defeat the bill. The lawyers issued a thorough memorandum in opposition to the revisions, with an especially cogent section arguing that the proposed revisions to the law of adverse possession would eliminate the statute of limitations on claims to real property:

"With respect to real estate the statute of limitations is especially important so that titles can be transferred and insured unencumbered by the prospect of extensive litigation…This will result in extensive litigation as to knowledge of persons, even those who may no longer be alive, in virtually every adverse possession action."

The Property Rights Foundation of America, Inc., got wind that the legislation was on Governor Eliot Spitzer's desk waiting to be signed into law. This writer contacted the governor's office and offered to write a letter in opposition. By coincidence, the bill had been delivered to the Governor the day before. The bill deserved to be vetoed because, if it became law, during future litigation to quiet title, it would muddy the ancient law of adverse possession, bringing human knowledge and intention, long-ignored historic written bounds, and even extremely fine points about the nature of structures and vegetation into consideration in vague and uncertain ways.

The office of the governor's counsel welcomed such a letter, which was e-mailed almost immediately. The remarks in the PRFA letter include this paragraph near the closing:

"Although not an area of general public knowledge, the law of adverse possession as upheld in the recent ruling by the Court of Appeals serves the public interest by making if possible to fairly eliminate confusion in title to property The current law of adverse possession is a well-established solution to a natural problem that will forever continue to occur between neighbors. The law should not be changed."

A few days later Gov. Spitzer issued a statement vetoing the proposed bill. The August 28, 2007 veto message included the words:

"The bill would amend New York's adverse possession statutes to provide that a possessor's actual knowledge of true ownership of property will bar a claim of title by adverse possession. Although at first blush this would seem to be a logical improvement to the law, in reality this change would have a radical impact on New York's adverse possession laws, and both the Real Property Section of the New York State Bar Association and the Property Rights Foundation of America have urged that this bill be vetoed."

The governor's veto message developed very important points, including:

"This bill could have significant adverse consequences for New York property owners. The addition of a 'knowledge' element to the statute of limitations would likely result in extensive litigation of virtually every adverse possession claim, and thus would undermine the certainty that the statute of limitations was established to provide. The protections against future litigation that a statute of limitations affords will be unavailable for this class of title claims, which could also impact the availability and cost of title insurance."

The issuance of the veto message was followed by two telephone calls here from the legislature: an angry call from then-Assembly Member Theresa Sayward, who represented the area of upstate New York that includes the town of Queensbury and the location of PRFA, and a much more agreeable call from a prominent staff member from the office of Sen. Little, who is an esteemed friend and resides nearby in Queensbury.

The call from Sen. Little's office went this way: Staff member: Why didn't you telephone us that you were opposed? My response: I didn't know that you could pass anything like this in both houses. Staff member: I can't argue with that.

But the relief afforded by the veto was short-lived. During the next session of the legislature, the bill was introduced again under Sen. Little's sponsorship. According to reports, the Real Property Law Section of the New York State Bar Association suggested amendments, which were incorporated and then altered. This went around a second and third time. The bar association committee could do no more. There was no hope.

The bill rolled through both houses with almost no opposition and was signed into law in July 2008 by Governor David Patterson. The bill's many gross deficiencies include a rule that "fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse." Hedge rows and "non-structural" stone walls have been used as boundary lines since time immemorial.

Stone boundary walls serve as "landmarks" protected at least as far back as the time when the book of Deuteronomy in the Bible was written: "Thou shalt not remove thy neighbor's landmark, which they of old time have set…" (Deut. 19:14 KJV)

These agenda-driven revisions to the law of adverse possession eliminated the clarity of the defense, honed over centuries of use, by the occupying party even when the deed clearly spells out another boundary. However, no law can be retroactive, and the ten years are still valid under the old law if they accrue before the bill passed.

This was exactly the case for Bill Cullen. The house had stood on that spot on his side of the wall for seventy years before Jets star Sam DeLuca bought the property next door. Trouble began in 2001. After Mr. DeLuca was unsuccessful in his attempts to buy the Cullen property, he then claimed a boundary line going straight through Bill Cullen's and his wife's kitchen and living room. A revised survey produced by Sam and Diane DeLuca claimed that the boundary line went three feet into Mr. Cullen's house.

Litigation began immediately and the federal court in Westchester ruled in support of Mr. DeLuca and his family. Mr. Cullen alleges that corruption is behind the ruling.

Judge Seibel, who ruled recently in the long legal dispute, seems to not understand that the ten years had passed long before the new law muddied the law of adverse possession. Her ruling made the Cullens prisoners in their house, unable to walk outside the wall nearest the DeLuca place to do routine maintenance without risking arrest

In a burst of hope spurred by recent media coverage including a feature article in the New York Daily News on October 22, 2013 Bill Cullen wrote her a letter on October 25, asking her to reconsider the evidence and revive the case. In summary, he stated:

"A simple review of the undisputed fact that the stone wall existed between the two homes for over 70 years, in light of well settled adverse possession law, renders all subsequent disputed issues incidental."

Responding to his letter, the federal judge issued a revised decision as a letter allowing the Cullens' house to stand and allowing them to use all of the interior but not allowing any access around that side of the house for exterior maintenance. In effect, her judicial letter creates a new boundary that is not a straight line like the old wall but a line from the shore that proceeds straight until it reaches the house, then wraps around the house, and then proceeds further along the survey line to the corner. Her letter basically allows the Cullens to occupy the interior of their house, even where the survey line would cut through the house, but interferes with the external ownership rights, an unworkable situation.

This lunacy is in contravention to the law of adverse possession—still in effect for ten-year occupancies prior to 2008—and also in contravention of established law respecting boundary walls, even though the new law states that they are not to be counted after 2008 toward the ten years to accomplish adverse possession.

In the meantime, Bill Cullen is in the position of so many landowners in countless situations where a deep-pocketed interest party or a government body rides roughshod over a person's constitutional property rights and leaves him facing the high cost of litigation to protect his just interest.

In the future, the confusing muddle that aggressive neighbors will have at their disposal to stop a neighboring property owner from settling the title to the land that he occupies will increasingly end up in court—where long-ignored written documents, ancient knowledge, beliefs, and memories will be argued about, while clearly visible physical evidence will be inadmissible.

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