It’s Alive! Adverse Possession Lives in NY.

In Tolake Corp. v. Altobello, the Second Department reaffirmed that the doctrine of adverse possession is alive and well in New York.  In Tolake, the defendants had been using a piece of plaintiff’s land in Rockland County as a driveway.  From time to time, defendants  added gravel to the driveway .   In 1982 they erected a shed on the land and pursuant to a lawfully obtained permit, later installed electrical wiring in the shed.   Eventually, the plaintiff grew tired of the intrusions and commenced an action for a declaration that it was the owner of the driveway that the defendants had been using.

Defendants claimed, however, that the driveway was theirs under the doctrine of adverse possession.   In order to own land by adverse possession the defendant needed to prove that their possession of the land was (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required ten year period.   Moreover, the defendants had to demonstrate that they either “usually cultivated or improved” the land or that they “protected it by a substantial enclosure.”

The Supreme Court (i.e. NY’s trial court) determined and the Second Department agreed that defendant’s possession met all of the requirements for ownership by adverse possession. The Second Department rejected the plaintiff’s  theory that such possession was not hostile because one of the defendants served on the board of the plaintiff corporation. The court found that such service on the board occurred after the 10-year statutory period had already run.   It further found that the defendants satisfied the requirement of usual cultivation or improvement. Finally, defendants offer to purchase the land did not defeat their claim because the offer was not made during the statutory period.  The courts therefore declared that defendants were the owners of plaintiff’s land by adverse possession.

Special thanks to Allison Weintraub for her contributions to this post.  For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.