New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

Here is the bill as signed:

S T A T E O F N E W Y O R K
________________________________________________________________________

7915--C
Cal. No. 1819

I N S E N A T E

April 28, 2008
___________

Introduced by Sens. LITTLE, SEWARD -- read twice and ordered printed,
and when printed to be committed to the Committee on Judiciary --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee -- committee discharged and said bill
committed to the Committee on Rules -- ordered to a third reading,
amended and ordered reprinted, retaining its place in the order of
third reading -- again amended and ordered reprinted, retaining its
place in the order of third reading

AN ACT to amend the real property actions and proceedings law, in
relation to adverse possession

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

1 Section 1. Section 501 of the real property actions and proceedings
2 law, as added by chapter 312 of the laws of 1962, is amended to read as
3 follows:
4 S 501. {Action after entry. An entry upon real property is not suffi-
5 cient or valid as a claim unless an action is commenced thereupon within
6 one year after the making thereof and within ten years after the time
7 when the right to make it descended or accrued.} ADVERSE POSSESSION;
8 DEFINED. FOR THE PURPOSES OF THIS ARTICLE:
9 1. ADVERSE POSSESSOR. A PERSON OR ENTITY IS AN "ADVERSE POSSESSOR" OF
10 REAL PROPERTY WHEN THE PERSON OR ENTITY OCCUPIES REAL PROPERTY OF ANOTH-
11 ER PERSON OR ENTITY WITH OR WITHOUT KNOWLEDGE OF THE OTHER`S SUPERIOR
12 OWNERSHIP RIGHTS, IN A MANNER THAT WOULD GIVE THE OWNER A CAUSE OF
13 ACTION FOR EJECTMENT.
14 2. ACQUISITION OF TITLE. AN ADVERSE POSSESSOR GAINS TITLE TO THE OCCU-
15 PIED REAL PROPERTY UPON THE EXPIRATION OF THE STATUTE OF LIMITATIONS FOR
16 AN ACTION TO RECOVER REAL PROPERTY PURSUANT TO SUBDIVISION (A) OF
17 SECTION TWO HUNDRED TWELVE OF THE CIVIL PRACTICE LAW AND RULES, PROVIDED
18 THAT THE OCCUPANCY, AS DESCRIBED IN SECTIONS FIVE HUNDRED TWELVE AND
19 FIVE HUNDRED TWENTY-TWO OF THIS ARTICLE, HAS BEEN ADVERSE, UNDER CLAIM
20 OF RIGHT, OPEN AND NOTORIOUS, CONTINUOUS, EXCLUSIVE, AND ACTUAL.
21 3. CLAIM OF RIGHT. A CLAIM OF RIGHT MEANS A REASONABLE BASIS FOR THE
22 BELIEF THAT THE PROPERTY BELONGS TO THE ADVERSE POSSESSOR OR PROPERTY

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD16482-09-8

S. 7915--C 2

1 OWNER, AS THE CASE MAY BE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
2 ARTICLE, CLAIM OF RIGHT SHALL NOT BE REQUIRED IF THE OWNER OR OWNERS OF
3 THE REAL PROPERTY THROUGHOUT THE STATUTORY PERIOD CANNOT BE ASCERTAINED
4 IN THE RECORDS OF THE COUNTY CLERK, OR THE REGISTER OF THE COUNTY, OF
5 THE COUNTY WHERE SUCH REAL PROPERTY IS SITUATED, AND LOCATED BY REASON-
6 ABLE MEANS.
7 S 2. Section 511 of the real property actions and proceedings law, as
8 added by chapter 312 of the laws of 1962, is amended to read as follows:
9 S 511. Adverse possession under written instrument or judgment. Where
10 the occupant or those under whom {he} THE OCCUPANT claims entered into
11 the possession of the premises under claim of {title} RIGHT, exclusive
12 of any other right, founding the claim upon a written instrument, as
13 being a conveyance of the premises in question, or upon the decree or
14 judgment of a competent court, and there has been a continued occupation
15 and possession of the premises included in the instrument, decree or
16 judgment, or of some part thereof, for ten years, under the same claim,
17 the premises so included are deemed to have been held adversely; except
18 that when they consist of a tract divided into lots, the possession of
19 one lot is not deemed a possession of any other lot.
20 S 3. Section 512 of the real property actions and proceedings law, as
21 added by chapter 312 of the laws of 1962, is amended to read as follows:
22 S 512. Essentials of adverse possession under written instrument or
23 judgment. For the purpose of constituting an adverse possession {by a
24 person claiming a title}, founded upon a written instrument or a judg-
25 ment or decree, land is deemed to have been possessed and occupied in
26 {either} ANY of the following cases:
27 1. Where {it has been usually cultivated or improved} THERE HAS BEEN
28 ACTS SUFFICIENTLY OPEN TO PUT A REASONABLY DILIGENT OWNER ON NOTICE.
29 2. Where it has been protected by a substantial {inclosure} ENCLOSURE,
30 EXCEPT AS PROVIDED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED
31 FORTY-THREE OF THIS ARTICLE.
32 3. Where, although not {inclosed} ENCLOSED, it has been used for the
33 supply of fuel or of fencing timber, either for the purposes of husban-
34 dry or for the ordinary use of the occupant.
35 Where a known farm or a single lot has been partly improved, the
36 portion of the farm or lot that has been left not cleared or not
37 {inclosed} ENCLOSED, according to the usual course and custom of the
38 adjoining country, is deemed to have been occupied for the same length
39 of time as the part improved and cultivated.
40 S 4. Section 521 of the real property actions and proceedings law, as
41 amended by chapter 116 of the laws of 1965, is amended to read as
42 follows:
43 S 521. Adverse possession {under claim of title not written} NOT UNDER
44 WRITTEN INSTRUMENT OR JUDGMENT. Where there has been an actual continued
45 occupation of premises under a claim of {title} RIGHT, exclusive of any
46 other right, but not founded upon a written instrument or a judgment or
47 decree, the premises so actually occupied, and no others, are deemed to
48 have been held adversely.
49 S 5. Section 522 of the real property actions and proceedings law, as
50 added by chapter 312 of the laws of 1962, is amended to read as follows:
51 S 522. Essentials of adverse possession {under claim of title not
52 written} NOT UNDER WRITTEN INSTRUMENT OR JUDGMENT. For the purpose of
53 constituting an adverse possession {by a person claiming title} not
54 founded upon a written instrument or a judgment or decree, land is
55 deemed to have been possessed and occupied in either of the following
56 cases, and no others:

S. 7915--C 3

1 1. Where {it has been usually cultivated or improved} THERE HAVE BEEN
2 ACTS SUFFICIENTLY OPEN TO PUT A REASONABLY DILIGENT OWNER ON NOTICE.
3 2. Where it has been protected by a substantial {inclosure} ENCLOSURE,
4 EXCEPT AS PROVIDED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED
5 FORTY-THREE OF THIS ARTICLE.
6 S 6. Section 531 of the real property actions and proceedings law, as
7 amended by chapter 375 of the laws of 1975, is amended to read as
8 follows:
9 S 531. Adverse possession, how affected by relation of landlord and
10 tenant. Where the relation of landlord and tenant has existed {between
11 any persons}, the possession of the tenant is deemed the possession of
12 the landlord until the expiration of ten years after the termination of
13 the tenancy; or, where there has been no written lease, until the expi-
14 ration of ten years after the last payment of rent; notwithstanding that
15 the tenant has acquired another title or has claimed to hold adversely
16 to his landlord. But this presumption shall cease after the periods
17 prescribed in this section and such tenant may then commence to hold
18 adversely to his landlord.
19 S 7. Section 541 of the real property actions and proceedings law, as
20 amended by chapter 375 of the laws of 1975, is amended to read as
21 follows:
22 S 541. Adverse possession, how affected by relation of tenants in
23 common. Where the relation of tenants in common has existed {between
24 any persons}, the occupancy of one tenant, personally or by his servant
25 or by his tenant, is deemed to have been the possession of the other,
26 notwithstanding that the tenant so occupying the premises has acquired
27 another title or has claimed to hold adversely to the other. But this
28 presumption shall cease after the expiration of ten years of continuous
29 exclusive occupancy by such tenant, personally or by his servant or by
30 his tenant, or immediately upon an ouster by one tenant of the other and
31 such occupying tenant may then commence to hold adversely to his coten-
32 ant.
33 S 8. The real property actions and proceedings law is amended by
34 adding a new section 543 to read as follows:
35 S 543. ADVERSE POSSESSION; HOW AFFECTED BY ACTS ACROSS A BOUNDARY
36 LINE. 1. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE EXIST-
37 ENCE OF DE MINIMUS NON-STRUCTURAL ENCROACHMENTS INCLUDING, BUT NOT
38 LIMITED TO, FENCES, HEDGES, SHRUBBERY, PLANTINGS, SHEDS AND NON-STRUC-
39 TURAL WALLS, SHALL BE DEEMED TO BE PERMISSIVE AND NON-ADVERSE.
40 2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE ACTS OF
41 LAWN MOWING OR SIMILAR MAINTENANCE ACROSS THE BOUNDARY LINE OF AN
42 ADJOINING LANDOWNER`S PROPERTY SHALL BE DEEMED PERMISSIVE AND NON-AD-
43 VERSE.
44 S 9. This act shall take effect immediately, and shall apply to claims
45 filed on or after such effective date.

Here is what the New York Bar Association Real Property Section had to say about it:

Memorandum in Opposition
RPLS #26 July 2, 2008
S. 7915-C By: Senator Little
A.11574-A By: M of A Gordon
Senate Committee: Judiciary
Assembly Committee: Judiciary
Effective Date: Immediately
AN ACT to amend the real property actions and proceedings law, in relation to adverse possession
LAW AND SECTIONS REFERRED TO: Sections 501, 511, 512, 521, 522, 531, 541 and 543 of the Real Property Actions and Proceedings Law.
THE REAL PROPERTY LAW SECTION OPPOSES THIS LEGISLATION
1. This bill contains the same disabilities that caused the Governor in message No. 153 of 2007 to veto S. 5364-A / A.9156 last year.
By requiring proof that the adverse possessor had a reasonable basis for believing the property belongs to the adverse possessor, the bill would, like the knowledge requirement of S. 5364-A of 2007, shift “the focus . . . from the owner’s notice that the property is being occupied by someone else, to the possessor’s knowledge that a third party may have an ownership interest in the property.”1
The change from belief in S.5364-A of 2007 to “reasonable basis for belief” in the current bill makes no substantive change to allieviate the unreasonable burden on the possessor. Indeed, the possessor will still have to prove that he or she, or the persons under whom they claim believed it was their property, and in addition, prove that there was a reasonable basis for such belief. Thus, even where it is clear that the adverse

1 See Veto Message No. 153 . The veto message went on to conclude that this shift of focus “adds an element for measuring this statute of limitations that will often be unknown and unknowable to a true owner.” The message also states: “In many instances, an individual who purchased property in good faith may believe that he or she is the rightful owner of the property, and may openly occupy and improve the property for many years. As a result, it is appropriate to place time limits on the ability of others to claim that they are the ‘true’ owner of the property. Indeed, given the frequency with which property is sold and transferred, the imposition of strict time limits on the ability of owners to seek to eject possessors of property is the only way to give homeowners throughout New York State the comfort of knowing that their homes cannot be taken away from them….”

possessor sincerely believed the property belonged to him or her, the possessor could lose the property if a court found that the belief by the possessor or those under whom the possessor claims, was not reasonable. What is a reasonable basis for belief is so indefinite that it would permit courts to reach different conclusions based on similar fact situations. As a result homeowners would be deprived of certainty that their property and their improvements will not be taken from them by persons claiming to be the “true owner.”
Under this legislation, homeowners who may have purchased and openly occupied property for many years may be called upon to prove that they or those under whom they claim entered the property with a reasonable basis for belief that the property belonged to them, thus requiring knowledge of conversations that may have occurred decades before, or to find other witnesses to dispute claims “after memories have faded, or indeed long after they have passed away.”2 In addition this legislation contains significant drafting ambiguities and raises important issues concerning the ability of New Yorkers to own and convey real property.
This legislation, like last year’s bill, was obviously sincerely introduced to remedy a perception that existing law sanctioned or encouraged willful and stealth takings of others’ property. Unfortunately, the legislation, if it should become law, will have significant adverse consequences for real estate ownership in New York.
2. The perceived inequity in present law that led to the introduction of this legislation would have been remedied by S. 7915 (unamended), proposed by the New York State Bar Association after a thorough study by its Task Force on Adverse Possession.
The New York State Bar Association’s Real Property Law Section established a Task Force on Adverse Possession, charged with the task of proposing language that would deal effectively with the perception (which gave rise to the vetoed proposal) that the present law enabled a person to acquire another’s property through stealth. After many months of deliberation and study, the Task Force’s conclusions were unanimously approved by the Executive Committee of the New York State Bar Association and resulted in the introduction of S. 7915 (unamended). Under this proposal, acquisition of property by adverse possessors without a reasonable belief the property belonged to the acquirer was made so uneconomic as to render any attempt of acquisition by stealth extremely remote if not highly irrational.
S. 7915 (unamended) would have accomplished this by limiting acquisition by adverse possession to situations where the adverse possessor’s actions were “sufficiently open to put a reasonably diligent owner on notice.” Under this specific statutory direction to the courts, the “willful” adverse possessor would have been required to expend funds and effort sufficient to alert the owner that someone was on the property, in the vain hope, over a ten year period, that he or she would not be ejected, while risking extensive damage liability and loss of all improvements. S. 7915 (unamended) would have had none of the adverse consequences of the legislation now before the Governor, and would have protected the innocent homeowner whether that person is the “true owner” or the one who acquired defective title. Attached is a copy of the New York State Bar Association’s memorandum in support of S.7915 (unamended), which explains how the proposal would have worked in greater detail and why any attempt to require an analysis of the mind of the adverse possessor would create severe problems of the people of New York.
3. The legislation before the Governor contains numerous inconsistencies, ambiguities and confusing changes that will result in extensive litigation.
In addition to the basic problem of looking to the mind rather than the actions of the adverse possessor discussed above, the bill that passed the legislature represented a hurried attempt at compromise that resulted in numerous drafting problems that will only increase litigation and costs. For example:
(a) The definition of “claim of right” is unclear in that it requires a reasonable basis for the belief that the property belongs to the adverse possessor or the property owner. While apparently not intended, the language indicates that an adverse possessor would have a “claim of right” if the adverse possessor had a reasonable basis for belief that the true owner was the true owner. This makes no sense and will only lead to increased litigation.
(b). The words “usually cultivated and improved,” long a part of New York’s adverse possession law and also a part of the concept of possession from the beginnings of Anglo-American jurisprudence, have disappeared from the legislation without any explanation or justification, leaving only the requirement proposed by the New York State Bar Association in S. 7915 (unamended) relating to the acts of the adverse possessor and intended as a limitation on the words “usually cultivated and improved.” There is no indication as to why those words were removed and it is not clear how the courts will interpret that deletion in the litigation that will surely follow.
(c). “Claim of right” is tested under Section 511 for adverse possession under a written instrument at the time the adverse possessor or its predecessors entered into possession. Under Section 521 “claim of right” for possession not under a written instrument is tested throughout the “actual continued occupation” of the property. Similarly, “claim of right” by those under whom the occupant claims is provided in Section 511 but not in Section 521. Extensive litigation will be required as parties try to resolve these issues.
(d) Section 543 deems certain de minimis non-structural encroachments, including fences, to be permissive. It is unclear what de minimis means. One court might find that a one foot encroachment is not de minimis while another may find two feet to be de minimis. The de minimis language replaced the suggested 12 inch permissive requirement in the New York State Bar Association bill. While 12 inches is certainly open to negotiation, the use of de minimis creates confusion and uncertainty and will lead to litigation in very many encroachment situations.
(e) We note that the reference to knowledge in section 501(1) is inconsistent with the insertion of “claim of right” in Section 501(3). We do not know how the courts will handle this conflict, but are certain that there will be extensive and conflicting decisions as a result of the litigation that will follow.
RECOMMENDATION
The New York State Bar Association Real Property Law Section respectfully requests that the Governor veto this hastily negotiated legislation and urge all parties in interest to sit down and draft an acceptable statute that would protect the interests of all the people of New York. The Real Property Law Ssection Task Force on Adverse Possession stands ready to assist in such a drafting effort.
Memorandum Prepared by:: Prof. Robert M. Zinman
Section Chair: Peter V. Coffey, Esq.