Good, Fact-Based Analysis of the Requirements for Adverse Possession

Reversing Supreme Court’s grant of summary judgment to the plaintiffs on their adverse-possession claim, the Third Department determined a question of fact had been raised about whether plaintiffs’ use of the disputed land was with the defendants’ permission, which would defeat the “hostility” element of adverse possession.  The Third Department offered a detailed fact-based analysis which provides an excellent lesson on the law of adverse possession. The court noted, on the issue of exclusivity, the claim that defendants occasionally maintained the disputed property during the plaintiffs’ absence was not enough to raise a question of fact about the plaintiffs’ exclusive use of the property:

To establish their claim for adverse possession, plaintiffs are required to prove by clear and convincing evidence that their possession of the disputed property “[was] hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of 10 years” … . Additionally, where, as here, the adverse possession claim is not based upon a written instrument, the party asserting the claim “must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure'” … .

As for [defendant’s] alleged maintenance of the disputed property during plaintiffs’ absences, “exclusivity is not defeated even if the true owner makes occasional forays onto the property . . .. [A]ll that is required is possession consistent with the nature of the property so as to indicate exclusive ownership” (1-5 Warren’s Weed, New York Real Property § 5.33 [2015]). In our view, plaintiffs’ exclusive, regular use and maintenance of the disputed property during their periods of occupation were consistent with the seasonal nature of their property. The occasional maintenance that defendants allegedly performed or directed during plaintiffs’ absences — which was performed without plaintiffs’ knowledge and did not interfere in any way with plaintiffs’ possession or use of the disputed property — was insufficient to meet defendants’ prima facie burden to establish that plaintiffs’ use of the property was not exclusive … . Bergmann v Spallane, 2015 NY Slip Op 04713, 3rd Dept 6-4-15