Real Property Law

Adverse Possession of MTA Land Raises Questions of Fact

Ng v. Metropolitan Transportation Authority

NYLJ 11/7/07, p. 26, col. 1

Supreme Ct., Kings Cty

(Schack, J.).

In an action claiming title by adverse possession, possessors sought a preliminary injunction and the MTA, as record owner, cross-moved for summary judgment. The court granted the preliminary injunction, holding that possessors had at least raised questions of fact about the merits of their claim to have adversely possessed land across the street from the MTA's Coney Island trainyard.

The subject property is located within a right of way to former railroad tracks, which have long since been removed. Possessors allege that since at least 1989, they have used the property, which is adjacent to their own lot, for the planting of shrubs, flowers and vegetables. They also allege (supported by photographs) that they have installed a chain-link fence around much of the parcel, and that the fence has been in place for more than ten years. In 2003, the MTA solicited bids for the disputed parcel. After receiving a bid, the MTA demanded that possessors remove their encroachments. Possessors subsequently brought this action.

In denying the MTA's summary judgment motion and granting possessors a preliminary injunction, the court first noted that possessors had alleged all of the elements necessary to support their adverse possession claim. The court then addressed the MTA's claim that it was immune from adverse possession claims. The court acknowledged that land used for a governmental function is immune from adverse possession claims, but noted that train tracks had been removed from the land many years ago, and that the land had not been used for any transportation or governmental function for decades. The court also noted that the MTA had leased a portion of the property for parking purposes in 1973, suggesting that the MTA was using the land in a proprietary capacity. As a result, the land was subject to adverse possession claims.

COMMENT

Adverse possessors cannot acquire title to property owned by a government entity if the government entity uses the property for public, rather than proprietary, purposes. Moreover, a deed to a municipality requiring that the municipality use the land for public purposes does not preclude an adverse possession claim, although the municipality's own declaration that it holds the land for a public purpose appears dispositive. Thus, in City of Tonawanda v. Ellicot Creek Homeowners Association, Inc., 86 A.D.2d 118, the Fourth Department declined to grant summary judgment dismissing the counterclaims of adverse possession brought by boat owners who used and improved upon creek front property owned by the city of Tonawanda even though the city had acquired the disputed land by a 1972 deed from the county that stated that the land was to be used for public or governmental purposes only. The indicated that the city's own declaration, in 1976, that it held the land for public purposes would preclude an adverse possession claim from ripening after that date, but indicated that the adverse possession claim might have ripened before that date, and noted that the city's efforts to sell or lease the land to private citizens between 1972 and 1975 precluded an award of summary judgment to the city.

As the Tonawanda opinion suggests, courts will find that government-owned land is held for proprietary purposes where the land is held for sale or where neighboring government-owned land is sold. Thus, in Lewis v. Village of Lyons, 54 A.D.2d 488, the court determined that land acquired by the Village of Lyons from Wayne County was held in a proprietary capacity because the village had sold to private individuals several other parcels of land the similarly acquired from Wayne County. As a result, owners of a commercial building acquired title by adverse possession by using the property at issue as a parking lot for approximately 20 years.

When a municipality acquires land through tax foreclosure proceedings, courts have held that any presumption that the land is held for public purposes ends three years after the municipality's acquisition. Thus, in Casini v. Sea Gate Association, 262 A.D.2d 593, the court upheld a claim of adverse possession of a traffic island when the city had obtained the island through tax foreclosure proceedings in 1977, but the previous owner, a homeowners association, continued to occupy the island until 1993. The court acknowledged the city administrative code's presumption that land acquired through foreclosure proceedings is held for public use, but held that the presumption lasts for only three years. Because the city had taken no further steps to earmark the property for public use, the homeowners association had satisfied the 10-year adverse possession period between 1980 and 1993, defeating the title claim by a purchaser from the city. Similarly, in Eller Media Company v. Bruckner Outdoor Signs, Inc., 299 A.D.2d 166, the Appellate Division held that a lot acquired by the government in foreclosure and retained for forty years without designation for public use was held for proprietary purposes and thus subject to adverse possession.

Adverse Possession of MTA Land Raises Questions of Fact

Ng v. Metropolitan Transportation Authority

NYLJ 11/7/07, p. 26, col. 1

Supreme Ct., Kings Cty

(Schack, J.).

In an action claiming title by adverse possession, possessors sought a preliminary injunction and the MTA, as record owner, cross-moved for summary judgment. The court granted the preliminary injunction, holding that possessors had at least raised questions of fact about the merits of their claim to have adversely possessed land across the street from the MTA's Coney Island trainyard.

The subject property is located within a right of way to former railroad tracks, which have long since been removed. Possessors allege that since at least 1989, they have used the property, which is adjacent to their own lot, for the planting of shrubs, flowers and vegetables. They also allege (supported by photographs) that they have installed a chain-link fence around much of the parcel, and that the fence has been in place for more than ten years. In 2003, the MTA solicited bids for the disputed parcel. After receiving a bid, the MTA demanded that possessors remove their encroachments. Possessors subsequently brought this action.

In denying the MTA's summary judgment motion and granting possessors a preliminary injunction, the court first noted that possessors had alleged all of the elements necessary to support their adverse possession claim. The court then addressed the MTA's claim that it was immune from adverse possession claims. The court acknowledged that land used for a governmental function is immune from adverse possession claims, but noted that train tracks had been removed from the land many years ago, and that the land had not been used for any transportation or governmental function for decades. The court also noted that the MTA had leased a portion of the property for parking purposes in 1973, suggesting that the MTA was using the land in a proprietary capacity. As a result, the land was subject to adverse possession claims.

COMMENT

Adverse possessors cannot acquire title to property owned by a government entity if the government entity uses the property for public, rather than proprietary, purposes. Moreover, a deed to a municipality requiring that the municipality use the land for public purposes does not preclude an adverse possession claim, although the municipality's own declaration that it holds the land for a public purpose appears dispositive. Thus, in City of Tonawanda v. Ellicot Creek Homeowners Association, Inc., 86 A.D.2d 118, the Fourth Department declined to grant summary judgment dismissing the counterclaims of adverse possession brought by boat owners who used and improved upon creek front property owned by the city of Tonawanda even though the city had acquired the disputed land by a 1972 deed from the county that stated that the land was to be used for public or governmental purposes only. The indicated that the city's own declaration, in 1976, that it held the land for public purposes would preclude an adverse possession claim from ripening after that date, but indicated that the adverse possession claim might have ripened before that date, and noted that the city's efforts to sell or lease the land to private citizens between 1972 and 1975 precluded an award of summary judgment to the city.

As the Tonawanda opinion suggests, courts will find that government-owned land is held for proprietary purposes where the land is held for sale or where neighboring government-owned land is sold. Thus, in Lewis v. Village of Lyons, 54 A.D.2d 488, the court determined that land acquired by the Village of Lyons from Wayne County was held in a proprietary capacity because the village had sold to private individuals several other parcels of land the similarly acquired from Wayne County. As a result, owners of a commercial building acquired title by adverse possession by using the property at issue as a parking lot for approximately 20 years.

When a municipality acquires land through tax foreclosure proceedings, courts have held that any presumption that the land is held for public purposes ends three years after the municipality's acquisition. Thus, in Casini v. Sea Gate Association , 262 A.D.2d 593, the court upheld a claim of adverse possession of a traffic island when the city had obtained the island through tax foreclosure proceedings in 1977, but the previous owner, a homeowners association, continued to occupy the island until 1993. The court acknowledged the city administrative code's presumption that land acquired through foreclosure proceedings is held for public use, but held that the presumption lasts for only three years. Because the city had taken no further steps to earmark the property for public use, the homeowners association had satisfied the 10-year adverse possession period between 1980 and 1993, defeating the title claim by a purchaser from the city. Similarly, in Eller Media Company v. Bruckner Outdoor Signs, Inc., 299 A.D.2d 166, the Appellate Division held that a lot acquired by the government in foreclosure and retained for forty years without designation for public use was held for proprietary purposes and thus subject to adverse possession.