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Changes in New York's Adverse Possession Law — July 2008

The Established Ancient Law of Adverse Possession

Applies when 10 years of occupation were accrued before July 2008 (without consideration of the existence of a written document).

Gives certainty in title to adverse possessors of property that has been occupied openly, notoriously, continuously, exclusively, adversely (hostilely), and under claim of right for 10 years, irrespective of deed.

Irrelevant whether the adverse occupier knew that he had no valid claim to the property.

Based on factually visible observations, which can be objectively observed.

Does not involve litigation about fore-knowledge of deeded boundaries or intent of the adverse possessor.

A body of case law has developed during the past two centuries, enabling litigants to proceed logically in efforts to "quiet" title to real property.

New York's Nebulous, Confusing
New Law of Adverse Possession

Applies to disputes based upon occupation of 10 years after July 2008 under a written instrument or 20 years under a title not written.

With limited exceptions, gives preference to written boundaries in deeds, irrespective of how the land has been occupied.

Selected Specifics:
Requires that the occupation was carried out "without having acquired actual knowledge that such claim of title is invalid." (Judging by the other clauses of the new law it seems likely that possession of a deed depicting boundaries unfavorable to the adverse possessor would be considered a primary means of proof of "having acquired actual knowledge.")

The adverse possessor must have "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be." (However, this is not required when there is no record of the owner at the county seat.)

Court rulings could be based on historic understanding, intention, memories, and could even bring into consideration recollections about the understanding held by deceased individuals.

The former standard of "usually cultivated or improved" has been superseded by the requirement of "acts sufficiently open to put a reasonable person on notice,"

The new law eliminates the use of evidence of occupation across a boundary line where the evidence is classified as "de minimus," including fences, hedges, shrubbery, lawn-mowing, plantings, sheds, and non-structural walls.

(It is uncertain what comprises a non-structural wall, or when structures such as porches, patios, garages, would fall under the "shed" category or another interpretation of de minimus.)

This creates many problems, such as failing to allow for or to distinguish the status of open land occupied by a lawn, garden, hedge, shrubbery, wall, or fence that is an integral part of a functioning home, or to allow adverse possession of a strip of such land integral to the maintenance of the functioning home, where the de minimus occupation of a broader area is not allowed.

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