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New York real estate law: A primer on adverse possession

On behalf of Steven Waldinger

Adverse possession is a legal way to acquire title to land apart from the usual avenues of doing so.

For most people, the concept of adverse possession is counterintuitive to usually accepted ideas about property ownership. Basically, adverse possession allows a person who possesses land over a required period of time in a way that meets certain legal requirements to take and legally hold actual title to that land away from the owner of record.

Adverse possession reportedly has roots in ancient times and in early England was seen as a reward for people who possessed land in productive ways like raising crops or livestock when the actual owners were inactive with it. It was and is considered a legal means to resolve boundary and title disputes, although not necessarily the favored way to acquire title to real estate.

Adverse possession exists in all U.S. states and is governed by state laws. Oftentimes adverse possession issues arise in
boundary line disputes between neighboring landowners. Notably, title to real estate acquired through adverse possession is as strong as and equal to title achieved through inheritance, gift or purchase.

In New York, the legal requirements to acquire title through adverse possession must be proven by clear and convincing evidence and are that possession must have been all of the following:

  • Hostile and under claim of right
  • Actual
  • Open and notorious
  • Exclusive
  • Continuous for at least 10 years, called the statutory period

It does not matter whether or not the adverse possessor knew the actual title of record was owned by another person. As one New York case said: “[c]onduct will prevail over knowledge.”

Anyone involved in land ownership issues related to possible adverse possession should seek legal counsel from an attorney because the law in New York is extremely complex and exacting. Getting advice from a lawyer is smart whether you seek to get title to land through adverse possession or you face an adverse claim to your land through possession by another person. A title dispute related to adverse possession may be resolvable through negotiation and settlement or, if agreement is not possible, could lead in New York to a lawsuit to either recover real property or quiet title, or to compel determination of a claim to real property.

The attorneys at Gettinger Waldinger Monteleone Gushue & Hollis, LLP , in Mount Kisco represent business, individual and developer clients in adverse possession matters as well as in a wide variety of other commercial and residential real estate issues in Westchester County and the Lower Hudson Valley.