Commercial Real Estate Blog by Madison

Isn’t it Time to Jettison Adverse Possession Laws?

Adverse possession is a method of acquiring title to real property by possessing it for a statutory period under certain conditions.   The doctrine of adverse possession has been a part of American law since the founding of our country; a precept of western civilization’s legal system for centuries.  However, perhaps it is time to recognize that the idea that an owner of real property should lose title to his land, simply because someone else has been using it, is a relic of the past.

The primary reason for the development of adverse possession law was to promote the productive use of property.  If an absentee owner did not tend to his land, the land would not produce food or other benefits for society.  This certainly made sense during the time of an agrarian society.  Today, however, there is little fear that we would not be able to feed, clothe and house our citizens by allowing land to lay fallow.  If we fail as a society to provide these basic protections, it certainly has nothing to do with unproductive real property. 

Thanks, in part, to a robust title insurance industry and the digitization of property information, it is relatively easy to determine who owns which real property in America.  Nevertheless we retain a legal doctrine that allows someone to obtain title to another’s land without paying the owner. 

For a successful claim of adverse possession, the adverse user must typically show that the occupation is hostile, actual, open and notorious, exclusive, and continuous for the statutory period.  Specific adverse possession rules vary by state.  Individual state laws determine the length of time an adverse possessor must occupy the real property.  The timeframes range from 30 years to as few as just 5 years.  

Adverse Possession in New York

Prior to 2008, New York recognized a successful claim even if the adverse possessor knew that the land belonged to someone else.  The courts also allowed the simple acts of mowing the lawn, planting bushes or maintaining a fence for the statutory period to be enough for a successful adverse possession claim.  I would argue that the placement of the burden on the owner of the real property to ensure that he inspects and maintains his property rather than on the possessor not to use and benefit from another’s property seems fundamentally contrary to fairness and the basic rule of law.

In 2006, the New York Court of Appeals (NY’s highest court) held that a neighbor adversely possessed land after running underground pipes and mowing, raking, and planting on a portion of the title owner’s land.  The Court acknowledged that the adverse user may have intentionally trespassed on the disputed parcel.  However, New York’s case and statutory law had left the Court with little choice but to allow the neighbor to take the title to the property.  Some observers argued that the prior owner should be penalized for his neglect and leaving the property in a state of unsightly disrepair.  However, unlike in the past when the adverse possession laws took root, we now have zoning ordinances, building codes and municipal planning regulations to minimize long term neglect of real property including structures and infrastructure.

Following the ruling the legislature amended the adverse possession law in 2008.  The legislature changed the law so that the adverse user may not intentionally trespass and occupy another’s land.  The legislature also excluded mowing and other maintenance activities from constituting adverse acts. 

Did the New York legislature go far enough?  Why allow someone to take title away from another simply by occupying and using the other’s land?

Time to Shift the Burden

The New York adverse possession law differs in some ways from the laws in other states but the basic doctrine remains the same: a person who legally obtained real property (by purchase or inheritance, for example), can lose his land and the improvements on the land through the acts of others who occupy and use his land without permission.

Isn’t it time to lift the burden from the land owner of record and shift it to the possessor of land he doesn’t own?

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