Court of Appeals Clarifies Adverse Possession Doctrine

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.'

Van Valkenburgh v. Lutz

In 1952, the Court of Appeals muddied the meaning of the 'hostile and under claim of right' requirement when, by a 4-3 majority, the court rejected the adverse possession claim of a man growing vegetables on a lot in the City of Yonkers. Van Valkenburgh v. Lutz, 304 US 95 (1952). The court's opinion appeared to rest on two grounds: first, that the possessor's use did not constitute 'usual cultivation and improvement' within the meaning of the New York statute, and second, that because the possessor knew he didn't own the disputed lot, his possession was not 'under claim of right.' This second prong of the Van Valkenburgh decision effectively defeats the purpose of adverse possession doctrine, because subsequent purchasers ' the parties who need the doctrine's protection ' will have little basis to uncover the state of mind of prior possessors. Judge Fuld recognized as much in his Van Valkenburgh dissent, arguing that state of mind should be irrelevant in an adverse possession claim; outward manifestations of ownership should suffice. As he put it, '[t]hat Lutz knew that he did not have the record title to the property ' a circumstance relied upon by the court ' is of no consequence, so long as he intended, notwithstanding that fact, to acquire and use the property as his own.'

Nevertheless, lower New York courts have struggled with the majority opinion in Van Valkenburgh for more than half a century. Every claim of adverse possession was subject to the argument that the possessor could not establish that occupation was pursuant to a claim of right. MAG Associates v. SDR Realty, Inc., 247 AD2d 516, is illustrative. There, claimant's predecessor had occupied the disputed land from 1949 through 1994, erecting buildings on the disputed parcel and enclosing it (along with predecessor's other land) with a chain-link fence. On these facts, Supreme Court awarded summary judgment on claimant's adverse possession claim, but the Appellate Division reversed, conceding that clearing and convincing evidence established that claimant had established all of the other requirements for title by adverse possession, but holding that a triable issue of fact existed about whether the predecessor had occupied the land under a claim of right. Cases like MAG Associates impaired security of title, defeating the very purpose of adverse possession doctrine.

Walling v. Przyblo

It is against that background that the Court of Appeals decided Walling v. Przyblo, 2006 NY Lexis 1493. In 1987, possessors dug a trench and installed pipe on what turned out to be their neighbors' land. They built an underground dog wire fence and mowed, graded, raked, planted, and watered the disputed area. In 1992, they added a post and birdhouse. In 2004, the neighbors commissioned a survey and discovered, for the first time, that these improvements were located on their land. The Appellate Division held that summary judgment should have been awarded to the adverse possessor, but the neighbors appealed, contending that questions of fact remained about whether the possessors had actual knowledge that they were encroaching on neighboring land, knowledge which, under Van Valkenburgh's second prong, would defeat their adverse possession claim.

The Court of Appeals affirmed in an opinion by Judge George Bundy Smith, holding that 'actual knowledge of the true owner is not fatal to an adverse possession claim.' The court emphasized that '[c]onduct will prevail over knowledge,' especially when the true owner has acquiesced in long-term possession. The court emphasized the true owner's failure to assert any right to the disputed land, not the state of mind of the possessor.

The court did acknowledge that some of the language in Van Valkenburgh was inconsistent with the Walling opinion, but referred to the Van Valkenburgh language as 'perhaps mistaken dictum in that case.' Walling, then, appears to eliminate the need to prove state of mind as an element of an adverse possession claim.

Stewart E. Sterk is Editor-in-Chief of this newsletter.

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.'

Van Valkenburgh v. Lutz

In 1952, the Court of Appeals muddied the meaning of the 'hostile and under claim of right' requirement when, by a 4-3 majority, the court rejected the adverse possession claim of a man growing vegetables on a lot in the City of Yonkers. Van Valkenburgh v. Lutz , 304 US 95 (1952). The court's opinion appeared to rest on two grounds: first, that the possessor's use did not constitute 'usual cultivation and improvement' within the meaning of the New York statute, and second, that because the possessor knew he didn't own the disputed lot, his possession was not 'under claim of right.' This second prong of the Van Valkenburgh decision effectively defeats the purpose of adverse possession doctrine, because subsequent purchasers ' the parties who need the doctrine's protection ' will have little basis to uncover the state of mind of prior possessors. Judge Fuld recognized as much in his Van Valkenburgh dissent, arguing that state of mind should be irrelevant in an adverse possession claim; outward manifestations of ownership should suffice. As he put it, '[t]hat Lutz knew that he did not have the record title to the property ' a circumstance relied upon by the court ' is of no consequence, so long as he intended, notwithstanding that fact, to acquire and use the property as his own.'

Nevertheless, lower New York courts have struggled with the majority opinion in Van Valkenburgh for more than half a century. Every claim of adverse possession was subject to the argument that the possessor could not establish that occupation was pursuant to a claim of right. MAG Associates v. SDR Realty, Inc. , 247 AD2d 516, is illustrative. There, claimant's predecessor had occupied the disputed land from 1949 through 1994, erecting buildings on the disputed parcel and enclosing it (along with predecessor's other land) with a chain-link fence. On these facts, Supreme Court awarded summary judgment on claimant's adverse possession claim, but the Appellate Division reversed, conceding that clearing and convincing evidence established that claimant had established all of the other requirements for title by adverse possession, but holding that a triable issue of fact existed about whether the predecessor had occupied the land under a claim of right. Cases like MAG Associates impaired security of title, defeating the very purpose of adverse possession doctrine.

Walling v. Przyblo

It is against that background that the Court of Appeals decided Walling v. Przyblo, 2006 NY Lexis 1493. In 1987, possessors dug a trench and installed pipe on what turned out to be their neighbors' land. They built an underground dog wire fence and mowed, graded, raked, planted, and watered the disputed area. In 1992, they added a post and birdhouse. In 2004, the neighbors commissioned a survey and discovered, for the first time, that these improvements were located on their land. The Appellate Division held that summary judgment should have been awarded to the adverse possessor, but the neighbors appealed, contending that questions of fact remained about whether the possessors had actual knowledge that they were encroaching on neighboring land, knowledge which, under Van Valkenburgh's second prong, would defeat their adverse possession claim.

The Court of Appeals affirmed in an opinion by Judge George Bundy Smith, holding that 'actual knowledge of the true owner is not fatal to an adverse possession claim.' The court emphasized that '[c]onduct will prevail over knowledge,' especially when the true owner has acquiesced in long-term possession. The court emphasized the true owner's failure to assert any right to the disputed land, not the state of mind of the possessor.

The court did acknowledge that some of the language in Van Valkenburgh was inconsistent with the Walling opinion, but referred to the Van Valkenburgh language as 'perhaps mistaken dictum in that case.' Walling, then, appears to eliminate the need to prove state of mind as an element of an adverse possession claim.

Stewart E. Sterk is Editor-in-Chief of this newsletter.