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Court of Appeals Clarifies Adverse Possession Doctrine

BY Stewart E. Sterk
September 28, 2006

Despite its ancient origins, adverse possession doctrine retains considerable contemporary importance. Disputed questions of fact explain the continuing volume of adverse possession litigation, but unfortunate statements of law have also been a factor. This past spring, in Walling v. Przyblo, the Court of Appeals took a significant step toward clarifying and simplifying adverse possession doctrine in New York.

Background

As the Court of Appeals recognized nearly a century ago, adverse possession 'is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles.' Belotti v. Bickhardt, 228 NY 296, 308 (1920). Long-time use of land as an owner would use it vests the user with title, even if someone else has better 'paper title.' The doctrine protects purchasers by permitting them to rely on long-term use as evidence of title, rather than requiring them to track down deeds that may be difficult to find or nonexistent. To establish title, an adverse possessor must prove actual, exclusive, open and notorious possession (which the New York statute defines to require enclosure or usual cultivation or improvement), but the possessor must also prove that possession was 'hostile and under claim of right.'

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