Losing Your Property Rights Through Inattention
I was recently reminded that property owners are still losing property rights through inattention – or embroiling themselves in costly lawsuits to retain their property rights. The legal mechanisms of “adverse possession” and “prescriptive easement” can have such consequences. And, the “best practice” for avoiding the consequences is amazingly simple: just pay attention to your property.
The memory trigger for this commentary was an e-mail newsletter of “current developments” offered as a helpful service by a New York title company, First American Title Insurance Company of New York. A recent issue described still another adverse possession case on Long Island. An adverse possession case triggers strong memories in our firm because one particularly intense case lasted through 13 days of trial.
Adverse possession, in plain language and greatly simplified, is the legal means by which a person can obtain title to real property without paying for it. The adverse possessor simply acts as if he or she owns it for a long enough period of time – for example, in New York 10 years, in Connecticut 15. A prescriptive easement is similar but involves not ownership but use – you can gain the right to continue a use in perpetuity on property you do not own. Although these concepts may sound odd and unfair to a person unfamiliar with real property law, they have sound bases in logic and, once examined, actually involve fair and reasonable principles of law. Ownership and the right to use property should not remain ambiguous or subject to challenge indefinitely so under appropriate circumstances the law provides a way to “settle” either title (adverse possession) or the right to use (prescriptive easement).
Of course, actually invoking these concepts is not so simple and there are rigid legal requirements subject to highly technical definitions and rules. For example, under New York law: To obtain legal title, the would-be adverse possessor bears the legal “burden” to offer proof that is “clear and convincing.” This is a level proof somewhat less than “beyond a reasonable doubt” that we know about from criminal cases but certainly greater than the “preponderance of the evidence” required in most non-criminal legal disputes. If claiming the land without a deed or other documentary proof, the offered proof must demonstrate that possession was “hostile and under a claim of right,” “actual,” “open and notorious,” “exclusive,” and “continuous” for the statutory period (i.e., 10 years in New York). In addition, the would-be adverse possessor must demonstrate, with the same level of “clear and convincing” proof, that the property was “usually cultivated or improved,” and “protected by a substantial enclosure.”
To obtain a prescriptive easement, it is not necessary to show possession, only use. And, there are no requirements involving “usual cultivation and improvement” and “substantial enclosure.” Nor, does the use have to be exclusive. For example, you may be entitled to nonexclusive use of your neighbor’s path. However, a prescriptive easement cannot be obtained if the use is carried on by permission. If the other standards are met by the would-be prescriptive user, the owner bears the burden of establishing that the use was carried on by permission.
Volumes have been written in actual court cases and legal treatises giving definition to these standards. It is well beyond the scope of this post to try to define these terms, all of which are definitely and emphatically legal terms of art. However, I am going to bet that the plain language meaning of these terms gives a sufficient flavor of the issues that this type of litigation would present.
In the Long Island case that triggered this commentary, the decision turned on two points: (1) the fence claimed as the “substantial enclosure” was built by the record owner, not the would-be adverse possessor and was not sufficient to meet the standard of a “substantial enclosure;” and (2) the encroachment (the garage butting in a foot or two) was not sufficient. There were other factors, not central to our points. In this particular case, although the record owners had to go through the expense and trouble of the litigation, ultimately they got to keep their property. The case is RSVL, Inc. v. Portillo, 16 Misc.3d 1137, 2007 WL 2669463 (Sup.Ct. Nassau 2007).
And, just to show that adverse possession is not a New York phenomenon, A Connecticut Law Blog recently discussed a case that turned on the availability of family photos and videos to show how the land had been used. For their discussion of the Connecticut case, Carter v. Yampanis, 2008 WL 344706 (Super.Ct.) click here. A Connecticut Law Blog also offers their summary of Connecticut adverse possession law through a link within their article about the case..
Neither the Long Island case not the Connecticut case was "published” which means, in general terms, that neither case is to be used as a precedent although the reasoning can be “persuasive” if applied to similar facts. Also, the Long Island case was a New York Supreme Court case and the Connecticut case was a Superior Court case, which means each in its jurisdiction is a trial level case that may or may not be appealed. In general, adverse possession and prescriptive easement cases are highly “fact intensive,” which means that although the legal concepts are settled and not disputed, the facts and the application of the law to those facts may be hotly disputed..
Our focus is to present “best” or “better” practices to our readers in avoiding litigation or, if entangled in it, moving towards settlement and, if that fails, winning at trial. In terms of adverse possession and prescriptive easement, the “best practices” are well-known, it’s matter of actually doing what you know you should:. Inspect your property. Be aware of encroachments. Take action to eliminate the encroachment. And, if you are not clear about how long the encroachment has been going on, take action quickly because the statutory period can run out on you faster than you think. Also, by a concept called “tacking,” involving the activities of a prior possessor or user, the period might have been running a long time before you become aware of it.
