SERIES: Sixteen VOLUME: Eight DATED: August, 2001

~FENCE AFFIDAVIT HELD NOT SUFFICIENT TO DEFEAT ADVERSE POSSESSION~

A recently decided Appellate Division case, Ahl v. Jackson (Appellate Division 4th Department, decided May 10, 2000) has held that once an adverse possessor's possession of land is open and notorious, exclusive, continuous, hostile and under a claim of right for a period over ten (10) years, the adverse possessor is vested with title to the land possessed and "title may be transferred only by deed or other method recognized at law". The Appellate Division also held that a statement in a fence affidavit, after the 10 year adverse possession statutory period has run, that the adverse possessor did not claim the possessed land at issue does not constitute a legal transfer of the land adversely possessed.

The full text of the Appellate Division memorandum decision in the Ahl case is as follows:

"Supreme Court properly determined that plaintiff obtained title to the disputed parcel by adverse possession. Plaintiff established that, for a period of over 10 years, he and his predecessors in title possessed the disputed parcel and that their possession was open and notorious, exclusive, continuous, hostile and under claim of right... Because plaintiff was vested with title to the property by adverse possession, title may be transferred only by deed or other method recognized at law. The statement of plaintiff in a 'fence affidavit' after the statutory period had run that he did not claim the land does not constitute a legal transfer. The affidavit constitutes at most a recognition of record title in another, which is insufficient to divest plaintiff of title after the statutory period had run...

Order and judgment unanimously affirmed without costs."

It would appear, based on this decision that, in instances where a fence dividing two adjacent residential properties is located more than a "de minimis" distance (i.e. more than 1 foot) from the common boundary line depicted in their record deed descriptions, a two party, fully acknowledged boundary agreement should be entered into between the adjacent neighbors by which each adjacent neighbor confirms their record common property line, identifies the fence mislocation near that property line and quit claims to their adjacent neighbor ownership of all lands to that common boundary.

~STANDARD OF PROOF FOR FORGERY OF PROPERLY ACKNOWLEDGED DOCUMENT~

A recently decided appeal, Dembleuski v. Dembleuski (Appellate Division, 4th Department, decided December 30, 1999), reversed a lower court holding of forgery of a deed on the basis that the burden of proof of the forgery had not been met by the plaintiff. The Court in the Dembleuski action held as follows concerning the level of proof necessary to prove a forgery:

"Supreme Court erred, following a bench trial, in awarding plaintiff's decedent a 50% interest in the 2055 Walden Avenue and Duke Road properties. It is well established that, 'where a document on its face is properly subscribed and bears the acknowledgement of a notary public, it give[s] rise to a presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary'... Although plaintiff's decedent testified that his signature on various deedswere forged, that 'unsupported testimony of [an] interested witness' is insufficient to meet his burden of proof... thus, based upon the recorded deeds, we conclude that the plaintiff is entitled to only a 10% interest in the 2055 Walden Avenue and Duke Road properties, and we modify the judgment accordingly."