Adverse possession is an often misunderstood way of gaining legal ownership of land in New York. Under adverse possession, people can gain title to land that previously belonged to another owner. It can apply to all different types of property in the state, from rural farmland to commercial real estate, whether or not the land has been developed. Regardless of the transfer of land via deed and title, a legitimate adverse possession claim can alter the chain of land ownership. However, in order for an adverse possession claim to be successful, a would-be landowner must meet certain standards.
Requirements for adverse possession
Historically, in order to claim adverse possession, the claimant would need to show that their occupancy of the land was:
- Hostile and under a claim of right
- Actual
- Open and notorious
- Exclusive
- Continuous for 10 years
This means that the person must have openly used the property without some kind of grant of permission by the legal owner. If the legal owner lent the real estate to the claimant or continued to use it themselves, adverse possession would not apply. Real Property Law Section 501.
Legislative changes in 2008
In 2008, the state legislature adopted amendments to the law to change the way adverse possession claims were handled. These only apply to claims where the 10-year possession mark was reached on or after July 7, 2008. Here, the claimant must show that they had a reasonable belief that the land belonged to them and not another party. If they know that someone else holds legal title to the land, they can no longer make the claim of right necessary for adverse possession.
Of course, adverse possession claims can be challenging and highly technical. There remain many potential claims where the potential possessor can legitimately claim a lack of knowledge of another lawful owner of the land.
To establish a claim of adverse possession a property owner must commence or defend a litigation in New York’s Supreme Court in the county in which the property is located and establish all of the elements and rebut any defenses asserted by the landowner. Courts are quite strict in their interpretation, so it is difficult to win such cases. Such claims are often made under Real Property Actions and Proceedings Law Article 15, but the issue may be raised in other kinds of litigation as well.
