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CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT).

The Second Department determined defendant failed to meet the proof requirements for adverse possession and ouster against a cotenant:

In order to establish his counterclaim for adverse possession, the defendant was required to prove, by clear and convincing evidence, that his possession of the property was (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required statutory period… . The defendant could not establish that his possession of Lot 176 was under a claim of right, as he did not have a reasonable basis for the belief that the property belonged to him alone (see RPAPL 501[3]). Even assuming that the defendant had exclusive possession of Lot 176 and that he paid maintenance expenses on that property, these actions are insufficient to establish a claim of right for purposes of adverse possession as against a cotenant … . RPAPL 541 creates a statutory presumption that a tenant in common in possession holds the property for the benefit of the cotenant … . The presumption ceases only after the expiration of 10 years of exclusive occupancy of such tenant or upon ouster (see RPAPL 541…).

Actual ouster usually requires a possessing cotenant to expressly communicate an intention to exclude or to deny the rights of cotenants. Ouster may be implied in cases where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them … . Here, the defendant did not commit acts constituting either an actual or implied ouster. Absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession … . Even assuming that the defendant had exclusive possession of the property after the plaintiff went on disability in 1994, the required 20-year statutory period had not elapsed when the defendant asserted his counterclaim for adverse possession in his answer … . Fini v Marini, 2018 NY Slip Op 06003, Second Dept 9-12-18

REAL PROPERTY LAW (CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))/COTENANTS (REAL PROPERTY LAW, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))/ADVERSE POSSESSION (CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))/OUSTER (CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))

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