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Home > Underwriting > Title News > Fourteen Volume Three

SERIES: Fourteen VOLUME: Three DATED: March, 1999


An Appellate decision, Walsh v. St. Mary's Church (248 AD2 793, 1998) has reaffirmed a number of prior court decisions which hold that a religious corporation may be divested of its property by adverse possession (as was held by the Court of Appeals in Reformed Church v. Shoecraft, 65 NY 134).

In the Walsh case, Amelia Walsh, the plaintiff, owned real property in Saratoga County which bordered a cemetery owned and maintained by the defendant, St. Mary's Church, a religious corporation. The plaintiff brought this action under Real Property Actions and Proceedings Law Article 15 to quiet title to a 161 square foot parcel of property which she claims to have adversely possessed from the defendant. In her action, the plaintiff Walsh brought a motion for a preliminary injunction to prevent St. Mary's Church from removing several trees, a fence and the remains of her deceased family pets which were buried in the disputed parcel. St. Mary's Church moved to dismiss Walsh's complaint arguing that its status as a religious corporation precluded the cemetery property from being alienated by adverse possession. A lower court decision granting Walsh her preliminary injunction and denying the motion to dismiss brought by St. Mary's Church was the subject of this appeal.

Upon review, the Appellate Court determined that:

"Precedent requires an affirmance. It is well settled that a religious corporation may be divested of its property by adverse possession... To the extent that defendant also argues that plaintiff's divestiture of the land through adverse possession represents a substantial burden on its free exercise of religion, we note that this particular argument was not advanced by defendant in support of its motion to dismiss and thus was never addressed by Supreme Court; accordingly, it is not preserved for Appellate review... In any event, this contention is without merit as the statutory enactments permitting title to property by adverse possession (See, RPAPL 511, 521) in no way intentionally 'regulate religious conduct or beliefs'...

Nor do we find that Supreme Court abused its discretion in granting plaintiff a preliminary injunction... , which will have the effect of preserving the status quo during the pendency of the action... A preliminary injunction may be granted where a movant has established the likelihood of ultimate success on the merits, irreparable injury and a balancing of equity in his or her favor... Our review of the record reveals that plaintiff demonstrated that she is likely to prove, by clear and convincing evidence, that she actually possessed the disputed parcel, which was protected by a fence since 1980, for a period of 10 years and that this possession was open and notorious, exclusive, continuous, hostile and under a claim of right... Moreover, the threat of removal of several large trees and the remains of family pets within the disputed property constitutes irreparable harm... "

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