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Ten Year Adverse Possession Period Began After Ten Year Permissive Use Period Expired

The Second Department determined that plaintiffs acquired property by adverse possession, even though the initial use of the property was by permission. The permission ceased by statute after ten years, and another ten years of hostile use passed:

A party seeking to obtain title by adverse possession must prove, by clear and convincing evidence, the following common-law requirements of adverse possession: that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years … . Here, only the first element is in dispute. According to the defendants, the plaintiffs’ use of the properties was by permission. * * *

…[A] landlord/tenant relationship existed between the parties and their predecessors and, therefore, RPAPL 531 applies. Since no written lease existed and the admissible evidence established that neither the plaintiffs nor their predecessor paid rent for their use of the properties since July 21, 1981, any permission that may have been granted to the plaintiffs or their predecessor to use the properties effectively ceased after 10 years (see RPAPL 531…). Thus, by operation of RPAPL 531, the plaintiffs’ adverse possession of the properties commenced on July 21, 1991. Under the circumstances of this case, we agree with the Supreme Court that the plaintiffs established their hostile use of the properties for a period of 10 years after the permissive period expired …, and that the plaintiffs were, therefore, entitled to a judgment declaring them to be the owners in fee simple absolute of the subject properties. Auto Gobbler Parts, Inc v Serpico, 2013 NY Slip Op 05977, 2nd Dept, 9-25-13

 

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