Real Property Law

In an action by operators of a community garden to establish title by adverse possession, record title holder appealed from Supreme Court's denial of its motion to dismiss. The Appellate Division affirmed, holding that the complaint adequately alleged continuous possession under a claim of right.

The complaint alleges that beginning in 1985, neighborhood activists began to clear debris from the subject corner lot in lower Manhattan and began planting trees, shrubs and vegetables. The complaint alleges that the activists erected a chain link fence around the garden, and that only members of the unincorporated association of activists had keys that would unlock the gate. The complaint also alleges that members permitted various school and community events to take place in the garden. In 1999, representatives of the garden's record owner entered the premises, tore down part of the fence, chopped down a tree and damaged a children's clubhouse. Members of the unincorporated association immediately removed the makeshift fence erected by record owner's representatives, and repaired the damage. In 2012, members of the association incorporated. Record title to the garden parcel had changed hands several times, and in 2014, the current record owner filed an application to build a six-story residential building on the lot, prompting the now-incorporated association to bring this action seeking a declaration that it has acquired title to the parcel by adverse possession. Supreme Court denied record owner's motion to dismiss, and record owner appealed.