Defending Against an Adverse Possession Claim in New York

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

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