Fences and Adverse Possession in New York: Why the Property Line Still Matters

After a real estate contract is signed, the purchaser’s attorney will usually order a title search. The purpose of the search is to confirm that the seller owns the property and can transfer clear and marketable title at closing. Even when a transaction appears straightforward, the title report may reveal issues that must be addressed before the closing can take place. One common issue is an open mortgage or lien. A prior mortgage may have been paid in full but never formally discharged of record. The title search may also reveal judgment liens, tax liens, unpaid property taxes, or other claims against the seller or the property. These items generally must be paid, released, or otherwise resolved at or before closing. The search may also uncover ownership or deed problems. A prior deed may contain an incorrect legal description, a misspelled name, a missing signature, or an improper acknowledgment. There may also be questions involving a deceased owner, an estate, a trust, a former spouse, or another person who may still have an ownership interest in the property. Survey and boundary issues can also delay a closing. Improvements such as fences, sheds, driveways, garages, decks, or swimming pools may encroach onto neighboring property or violate setback requirements. A neighbor’s structure may also encroach onto the property being purchased. Another frequent concern involves open building permits, certificates of occupancy, and municipal violations. An addition, finished basement, converted garage, deck, or other improvement may have been constructed without required permits or approvals. Depending upon the contract and the nature of the issue, the seller may be required to obtain approvals, cure violations, or provide an acceptable closing credit or escrow. The title report may also disclose easements, restrictions, and rights of way affecting the property. Some are routine, such as utility easements, while others may limit how the property can be used or developed. Purchasers should carefully review any restrictions that could interfere with their intended use of the property. Bankruptcy filings, pending lawsuits, unpaid homeowner association charges, and errors in public records may also create title concerns. In some cases, the issue can be resolved quickly through additional documentation. In others, the closing may need to be delayed while corrective documents, releases, court orders, or municipal approvals are obtained. Most title issues are curable, but identifying them early is important. Prompt review of the title report allows the attorneys, title company, lender, seller, and purchaser to address potential problems before the scheduled closing date and reduce the risk of an unexpected delay.

As Independence Day approaches, we find ourselves reflecting with gratitude on the remarkable inheritance we share as Americans. The liberty we enjoy today was not inevitable. It was secured by the courage of those who pledged their lives, fortunes, and sacred honor to the idea that people are endowed with unalienable rights - and it has been preserved across generations by countless men and women who believed those freedoms were worth defending. The framework of law and ordered liberty they built is the same foundation that allows our work, our community, and our families to flourish. We are deeply thankful for that legacy, and for the privilege of practicing law within a system devoted to justice and the rule of law. We are grateful, too, for the trust you place in our firm to help safeguard your own corner of it. This Independence Day, we hope you'll take a moment to honor those who came before us and to celebrate the freedom they passed into our keeping, perhaps even take a moment to read the Declaration (Declaration of Independence: A Transcription | National Archives). From our family to yours, we wish you a safe, joyful, and meaningful Fourth.

Adverse possession is one of the most misunderstood doctrines in New York real property law. In simple terms, it allows a person who is not the record owner of property to claim ownership if they have possessed the property in a legally sufficient way for a long enough period of time. But the doctrine is narrow, fact-specific, and often defensible. In New York, a party claiming adverse possession generally must prove that their possession was hostile and under a claim of right, actual, open and notorious, exclusive, and continuous for at least ten years. New York’s adverse possession statutes are found in RPAPL Article 5, including RPAPL § 501, which defines an adverse possessor as someone occupying another’s real property in a way that would give the owner a cause of action for ejectment. A strong defense often begins by attacking one or more of these required elements. For example, if the use was occasional, shared, hidden, permissive, or interrupted, the claim may fail. A neighbor who sometimes mows a strip of grass, parks on an area with permission, or uses land in common with others may not be able to establish the kind of exclusive and continuous possession required by law. Another key defense is permission. Adverse possession must be hostile in the legal sense, meaning the possession is inconsistent with the rights of the true owner. If the property owner gave permission — even informally — that can defeat the “hostile” element. This issue frequently arises in boundary disputes between neighbors, family members, or adjoining landowners who historically cooperated without formal agreements. New York law also distinguishes between adverse possession claims based on a written instrument and those not based on one. Where there is no deed, judgment, or written instrument supporting the claim, the claimant generally must show acts sufficiently open to put a reasonably diligent owner on notice, or that the disputed property was protected by a substantial enclosure. RPAPL § 522 addresses these requirements. The 2008 amendments to New York’s adverse possession law are also important. Those amendments clarified the requirement of a “claim of right” and were designed to limit claims based on stealthy or minor encroachments. However, courts have recognized that the amendments do not retroactively disturb rights that allegedly vested before the amendments took effect. For record owners, the best defense is often early action. A survey, written objection, license agreement, demand to remove an encroachment, fence repair, or timely ejectment action can help prevent a permissive or ambiguous use from ripening into a serious adverse possession claim. Once litigation begins, the defense usually turns on detailed proof: surveys, photographs, tax maps, deeds, prior correspondence, maintenance records, witness testimony, and evidence showing the claimant’s use was not exclusive, hostile, open, or continuous for the full ten-year period. In short, adverse possession is not automatic simply because someone used land for a long time. In New York, the claimant bears a heavy burden, and property owners often have substantial defenses when the facts are carefully developed. Because these disputes are highly fact-dependent, owners facing an adverse possession claim should promptly gather documents, preserve evidence, and consult counsel before taking or conceding any position. If you have an adverse possession claim or defense, feel free to call us to discuss your options. 516-801-8100