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Real Property Law
Neighbors Who Used Concrete Platform Adjacent to Fence Established Title By Adverse Possession
Bursky v. Gerratano NYLJ 6/26/20, p. 26, col. 3 AppDiv, Second Dept. (memorandum opinion)
In record owner's action for declaratory and injunctive relief and to recover damages for trespass, record owner appealed from Supreme Court's judgment, after a nonjury trial, holding that neighbors had acquired title to a disputed strip by adverse possession. The Appellate Division affirmed, holding that under the applicable pre-2008 standards, neighbors had met all of the requirements for establishing adverse possession.
Record owner and neighbor have lived side-by-side on adjacent properties for 40 years. Their parcels are separated by a fence, and both parties believed the fence was on the boundary line. A 2010 survey revealed the 126 square feet of the property on the neighbors' side of the fence was actually part of record owner's parcel. The disputed strip is improved with a raised concrete platform cemented to the fence, part of neighbors' rear porch, and a staircase to that porch. Neighbors have made regular repairs to the fence and all of the encroachments; record owner had made none. On that record, Supreme Court concluded that neighbors had acquired title by adverse possession. Record owner appealed.
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