Property Rights Foundation of America®

P. O. Box 75
Stony Creek, NY 12878
(518) 696-574

August 20, 2007

Ms. Amanda Hiller, Counsel
Executive Chamber
Albany, NY 12224

IN OPPOSITION TO: S 5364 - To Amend the Real Property Actions and Proceedings Law, in Relation to Adverse Possession

Dear Ms. Hiller:

This letter is to oppose S 5364, which would change the law of adverse possession. It is very important that the Governor not sign the bill that was passed by the Legislature.

Contrary to the public pronouncements by the legislators who shepherded this bill through the Legislature, the law of adverse possession worked very well in the case of Walling v. Przybylo. The case was wisely and fairly decided by the New York State Court of Appeals last year.

The Court held to all the strict criteria which must be met to accomplish a claim of right under adverse possession, including either knowingly or unknowingly occupying the property owned by another party, while meeting the other criteria. In Walling v. Przybylo, neither party realized where the boundary was and the Wallings unknowingly occupied the slip of land belonging to Przybylos, but the Court also dealt with the possibility that Wallings [at least theoretically] had in their possession a survey to their boundaries, and held that the law of adverse possession applied even if the occupation was deliberately adverse. Such "deliberate" occupation should remain part of the law of adverse possession.

The bill passed by the Legislature would poke a hole in the law of adverse possession by adding the subjective standard that adverse possession would not apply if the claimant had "acquired actual knowledge" that he did not have valid title to the land. (The legislators who sponsored this bill have said that this is to mean that if the claimant possessed a survey to the land indicating that his occupation extended beyond his boundaries he could not claim adverse possession.)

This standard would muddle the law of adverse possession by adding a subjective standard and would create confusion in title in New York State by eliminating the ability to quiet title after a standard statute of limitations.

There are many reasons why a party could possess a survey while not knowing the correct boundaries to the property, including that the survey could be in the hands of the mortgage holder, that the party never read or could not read the survey, or that the boundaries were marked by the seller in another location. Furthermore, the survey could be wrong and conflicting surveys could exist.

In addition, heirs in title to the property would become victims to the proposed hole in the law of adverse possession. For example, they could discover years after acquiring title that portions of improvements by the previous owner or themselves were located on the neighbor's property, but they would not be able to quiet title to the occupied property.

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 it 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.

The ability to have clear title to land, which the current law of adverse possession helps undergird, is part of the foundation of our system of land ownership and serves the State of New York well. For this reason, it is very important to NOT permit the bill passed by the Legislature to become law.


Carol W. LaGrasse, P.E.
Property Rights Foundation of America

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