The Impact of Oral Permission on an Adverse Possession Claim

In affirming, the Third Department first concluded that George's grant of permission would not defeat the Quinlans' claim, because George was not the record owner of the property at the time of his death. That conclusion, however, appears questionable as a matter of law. Even if George had predeceased Peter, George was one of Peter's intestate heirs, so that at Peter's death, George was at least a co-tenant of the property, with a right to possession and a right to grant permission to others.

The court then turned to the more substantial basis for its affirmance: Even assuming that George was the owner, his alleged desire to give the property to the Quinlans is irrelevant to the Quinlans' claim, because the Quinlans were claiming adversely against George's heirs (and any others with a claim to title after George's death), not against George. That is, any oral grant of permission by George would not defeat an adverse possession claim against the heirs, who had made no effort to remove the Quinlans for nearly 35 years.

Permission More Generally

New York courts have long held that when possession is actual, continuous, open and notorious, and exclusive, a presumption of hostility arises, and the true owner bears the burden of proving that the possession was permissive. See, e.g, Goss v. Twombly, 39 AD3d 1128; Parsons v. Hollingsworth, 259 A.D.2d 1054. Of course, evidence that the true owner gave the possessor explicit permission to use the disputed land will operate to defeat the adverse possession claim, because a true owner who has given explicit permission to the possessor has no reason to suspect that the possessor is claiming title to the land.

Often, however, permission is not explicit, and the question is whether the behavior of the parties was sufficient to rebut the presumption of hostility. In Becker v. Murtagh, 19 NY3d 75, 82, the Court of Appeals suggested that a neighborly relationship between the record owner and the possessor might be sufficient to rebut the presumption and to shift to the possessor the burden to prove hostility.

Permission by Former Owner

In Quinlan, the critical question was the effect of an alleged oral grant of permission by a former owner of the property. It was clear that the current “true owners” ' the grandnephews and grandniece ' has never granted permission to the Quinlans. In an earlier case, Chaner v. Calarco, 77 A.D.3d 1217, the Third Department had held that a grant of oral permission by a former owner would defeat an adverse possession claim. Chaner involved two adjacent parcels, one owned by Autieri and his estranged wife, and the neighboring parcel owned by Autieri and the adverse possessor. Autieri and the adverse possessor cultivated and maintained a strip on the adjacent parcel, and adverse possessor continued to maintain the strip for 15 years after Autieri's death, when a purchaser from the estranged wife removed the adverse possessor's landscaping and improvements, and erected a fence along the boundary line. The court rejected the adverse possession claim because the original possession was with the permission of a true owner (Autieri). The court then held that Autieri's death did not make the subsequent possession hostile because “the change in the ownership of the disputed land does not automatically alter the permissive nature of the use.” Id. at 1219.

The Quinlan court attempted to distinguish Chaner by noting that in Quinlan itself, there was no proof of permissive use by the former title owner, nor evidence supporting continuing permission by the grandniece and grandnephews. Neither of those distinctions, however, is persuasive. Quinlan was decided on summary judgment, so that the true owners had not enjoyed a full opportunity to bring forth evidence to support their allegations of permission. And there was no evidence of continuing permission in either Chaner or Quinlan. Nevertheless, the cases are readily distinguishable on another ground: In Quinlan, the Quinlans did not enter into possession until after the death of George, when George no longer had an ownership claim to the disputed land. In that situation, the true owners had no reason to believe that the possessors entered into occupation by permission of anyone who had authority to grant permission. As a result, the true owners had an obligation to seek possession within the statutory period.

The New Statute

The result in Quinlan is eminently sensible.' Sorting out questions about inheritance through George and Peter more than 35 years after their deaths would impose a burden on courts (and on potential purchasers of the land) that the alleged heirs could and should have resolved decades earlier. But how would Quinlan be decided under the 2008 amendments to the RPAPL? The amendments were not applicable because title vested in the Quinlans before enactment of the statute. But if the statute were applicable, would the Quinlans have satisfied the statutory requirement that an adverse possession claim be supported by a “claim of right,” defined as “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be”? RPAPL section 501(2) and 501(3).

The Quinlans had no basis for believing that the property belonged to them (unless the alleged oral statements of George qualified as providing a reasonable basis). Does that mean that the case would turn on evidence about what George said 35 years earlier? Fortunately, New York courts have not yet been confronted with the implications of the amendments, but that day will come before long, unless the state legislature modifies this ill-advised and poorly drafted statute.

Stewart E. Sterk, Mack Professor of Law at Benjamin N. Cardozo School of Law, is Editor-in-Chief of this newsletter.

Does a prior owner's oral grant of permission to enter the disputed land at the owner's death operate to defeat an adverse possession claim by a person who, after the oral grant of permission, occupied the land for the statutory period? The Third Department faced that question this summer in Quinlan v. John Doe, NYLJ 7/8/13, and suggested that the oral grant did not defeat the adverse possession claim. The court's sensible conclusion was in tension with some prior law, and also raises questions about the future impact of New York's ill-advised 2008 revisions to the adverse possession statute.

The Quinlan Case

George Rossi purchased a cabin in Saratoga County in 1939, and apparently transferred title to the cabin to his brother Peter in 1947. Peter died, intestate, before George, and George occupied the cabin, in season, until 1976. George also died intestate, in 1976. At that time, the Quinlans, who had developed a close relationship with George, took possession of the cabin. In 2010, they brought an action to quiet title by adverse possession, and obtained an order permitting service by publication. Two grandnephews and a grandniece of George and Peter appeared and counterclaimed for a judgment quieting title in their favor. They argued that George's alleged grant of permission to the Quinlans defeated the latters' adverse possession claim. Supreme Court rejected their argument and awarded summary judgment to the Quinlans. The grandnephews and grandniece appealed.

In affirming, the Third Department first concluded that George's grant of permission would not defeat the Quinlans' claim, because George was not the record owner of the property at the time of his death. That conclusion, however, appears questionable as a matter of law. Even if George had predeceased Peter, George was one of Peter's intestate heirs, so that at Peter's death, George was at least a co-tenant of the property, with a right to possession and a right to grant permission to others.

The court then turned to the more substantial basis for its affirmance: Even assuming that George was the owner, his alleged desire to give the property to the Quinlans is irrelevant to the Quinlans' claim, because the Quinlans were claiming adversely against George's heirs (and any others with a claim to title after George's death), not against George. That is, any oral grant of permission by George would not defeat an adverse possession claim against the heirs, who had made no effort to remove the Quinlans for nearly 35 years.

Permission More Generally

New York courts have long held that when possession is actual, continuous, open and notorious, and exclusive, a presumption of hostility arises, and the true owner bears the burden of proving that the possession was permissive. See, e.g, Goss v. Twombly , 39 AD3d 1128; Parsons v. Hollingsworth , 259 A.D.2d 1054. Of course, evidence that the true owner gave the possessor explicit permission to use the disputed land will operate to defeat the adverse possession claim, because a true owner who has given explicit permission to the possessor has no reason to suspect that the possessor is claiming title to the land.

Often, however, permission is not explicit, and the question is whether the behavior of the parties was sufficient to rebut the presumption of hostility. In Becker v. Murtagh , 19 NY3d 75, 82, the Court of Appeals suggested that a neighborly relationship between the record owner and the possessor might be sufficient to rebut the presumption and to shift to the possessor the burden to prove hostility.

Permission by Former Owner

In Quinlan, the critical question was the effect of an alleged oral grant of permission by a former owner of the property. It was clear that the current “true owners” ' the grandnephews and grandniece ' has never granted permission to the Quinlans. In an earlier case, Chaner v. Calarco , 77 A.D.3d 1217, the Third Department had held that a grant of oral permission by a former owner would defeat an adverse possession claim. Chaner involved two adjacent parcels, one owned by Autieri and his estranged wife, and the neighboring parcel owned by Autieri and the adverse possessor. Autieri and the adverse possessor cultivated and maintained a strip on the adjacent parcel, and adverse possessor continued to maintain the strip for 15 years after Autieri's death, when a purchaser from the estranged wife removed the adverse possessor's landscaping and improvements, and erected a fence along the boundary line. The court rejected the adverse possession claim because the original possession was with the permission of a true owner (Autieri). The court then held that Autieri's death did not make the subsequent possession hostile because “the change in the ownership of the disputed land does not automatically alter the permissive nature of the use.” Id. at 1219.

The Quinlan court attempted to distinguish Chaner by noting that in Quinlan itself, there was no proof of permissive use by the former title owner, nor evidence supporting continuing permission by the grandniece and grandnephews. Neither of those distinctions, however, is persuasive. Quinlan was decided on summary judgment, so that the true owners had not enjoyed a full opportunity to bring forth evidence to support their allegations of permission. And there was no evidence of continuing permission in either Chaner or Quinlan. Nevertheless, the cases are readily distinguishable on another ground: In Quinlan, the Quinlans did not enter into possession until after the death of George, when George no longer had an ownership claim to the disputed land. In that situation, the true owners had no reason to believe that the possessors entered into occupation by permission of anyone who had authority to grant permission. As a result, the true owners had an obligation to seek possession within the statutory period.

The New Statute

The result in Quinlan is eminently sensible.' Sorting out questions about inheritance through George and Peter more than 35 years after their deaths would impose a burden on courts (and on potential purchasers of the land) that the alleged heirs could and should have resolved decades earlier. But how would Quinlan be decided under the 2008 amendments to the RPAPL? The amendments were not applicable because title vested in the Quinlans before enactment of the statute. But if the statute were applicable, would the Quinlans have satisfied the statutory requirement that an adverse possession claim be supported by a “claim of right,” defined as “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be”? RPAPL section 501(2) and 501(3).

The Quinlans had no basis for believing that the property belonged to them (unless the alleged oral statements of George qualified as providing a reasonable basis). Does that mean that the case would turn on evidence about what George said 35 years earlier? Fortunately, New York courts have not yet been confronted with the implications of the amendments, but that day will come before long, unless the state legislature modifies this ill-advised and poorly drafted statute.

Stewart E. Sterk, Mack Professor of Law at Benjamin N. Cardozo School of Law, is Editor-in-Chief of this newsletter.