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Home > Underwriting > Title News > Fifteen Volume Two

SERIES: Fifteen VOLUME: Two DATED: February, 2000

~ESSENTIALS OF ADVERSE POSSESSION NOT BASED ON A WRITTEN INSTRUMENT~

Real Property Actions and Proceedings Law Section 521 (Adverse Possession Under a Claim of Title Not Written) states as follows:

"Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely."

Real Property Actions and Proceedings Law Section 522 (Essentials of Adverse Possession Under a Claim of Title Not Written) establishes two criteria for such adverse possession: "

For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:

1. Where it has been usually cultivated or improved.

2. Where it has been protected by a substantial enclosure."

A recently decided case, Mayville vs. Webb, Appellate Division, 3rd Department, decided December 9, 1999, illustrates the application of the requirements of the above statutes. In the Mayville action the plaintiffs and defendant owned adjoining properties in St. Lawrence County. The plaintiffs, who purchased their property in 1991, commenced an action under RPAPL's Article 15 in 1997 to establish their title by adverse possession to a 14 acre parcel which adjoins their property but which is included in the property description of the defendant's deed. Upon cross motions for summary judgment by both parties the lower court granted the defendant's motion and dismissed the plaintiffs' action.

The Appellate Division upheld the lower court decision with the following holding:

"To acquire title to the 14 acre parcel by adverse possession, plaintiffs must satisfy the common-law requirement of proving by clear and convincing evidence that the character of their possession of the property is hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory 10 year period... Inasmuch as their claim is not founded on a written instrument, plaintiffs must also satisfy thestatutory requirement of establishing possession and occupancy of the 14 acre parcel by proof that it was 'usually cultivated or improved' or 'protected by a substantial inclosure...'

Defendant met his burden as the proponent of a summary judgment motion with evidence that the wooded 14 acre parcel was not regularly cultivated, improved or enclosed and that, in fact, 'aside from certain actions taken by the plaintiffs since 1992 shows no signs of human use, activity or adverse possessory interests'. Plaintiffs' reliance on the old fence along what they claim as the boundary is misplaced, for there is no evidence that plaintiffs or their predecessors in title erected or maintained the fence... While plaintiffs submitted evidence that since 1979 their predecessors in title hunted on the parcel, collected firewood and cleared brush, there is not evidence of the frequency or duration of the activities, which are important factors in determining whether actual possession of land has been continuous... Despite the wild and undeveloped character of the 14 acre parcel, the minimal and apparently sporadic activities alleged by plaintiffs are insufficient to demonstrate to requisite usual cultivation or improvement... Supreme Court, therefore, correctly granted summary judgment to defendant."

~ AMENDMENT TO CONDOMINIUM LAW ALLOWS DISPLAY OF AMERICAN FLAG ~

A recent amendment to Real Property Law Section 339-j has established by statute that, with regard to compliance with condominium by-laws, rules and regulations, no action or proceeding for relief may be brought to prohibit the display of an American flag measuring no more than 4 feet by 6 feet.

Real Property Law Section 339-j as amended now reads as follows: (amended portion underlined)

"Section 339-j. Compliance with by-laws and rules and regulations. Each unit owner shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions adopted pursuant thereto. Failure to comply with any of the same shall be ground for an action to recover sums due, for damages or injunctive relief or both maintainable by the board of managers on behalf of the unit owners or, in a proper case, by an aggrieved unit owner. In any case of flagrant or repeated violation by a unit owner, he may be required by the board of managers to give sufficient surety or sureties for his future compliance with the by-laws, rules, regulations, resolutions and decisions. Notwithstanding the foregoing provisions of this section, no action or proceeding for any relief may be maintained due to the display of a flag of the United States measuring not more than four feet by six feet."


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