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

Acquiring property by adverse possession may be more difficult in the future, at least in New York.

I was alerted to a revision of the New York law of adverse possession, just signed by Governor Paterson, by Sui Generis - - a New York Law Blog in its New York Legal Roundup of July 9, 2008. The Roundup referenced linked to a report in Newsday.com by the Associated Press (Archaic Land Law Revised in New York).   Other news media carried the report.  Norrthcountrygazette.org provided a few background details, indicating this is an example of the legislature trumping the state’s highest court (NY’s Adverse Possession Law Revamped).

We have commented on adverse possession and explained what it is in prior posts here and here.

While Newsday characterizes adverse possession as an “archaic” law, our firm can attest from recent experience that adverse possession is a very live concept in both New York and Connecticut. Research queries turn up many recent cases. 

Media accounts of the new (actually, revised) law are broad-brush. According to the Newsday.com report, the acquisition of a neighbor’s land by adverse possession “will not happen simply because a fence, hedge, shrub, shed or other minimal, nonstructural item is placed across the deeded property line.”

According to the Northcountrygazette.org report, the new law requires that a “claimant have a ‘claim of right’ or ‘reasonable basis for the belief’ that the property is theirs to take by adverse possession.” Northcountrygazette.org also reports that the law is the ultimate product of legislators’ efforts to trump the Court of Appeals and reverse the law created by the case of Walling v. Przybylo,7 N.Y.3d 228, 818 N.Y.S.2d 816 (2006), holding that actual knowledge by the claimant that another person is the owner by deed does not defeat an adverse possession claim.

The news reports do not provide enough details to fully understand the changes. We will comment further when the text of the statutory changes and technical legal commentaries are available. Please “stay tuned.” 

In the meantime, it is still a fact that adverse possession can be “defeated” if property owners walk their property lines, make a note of any encroachments and, with their attorneys, take prompt, appropriate action - - before it’s too late.

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Readers might have noticed that we like commenting on posts in the Wall Street Journal Law Blog. We don’t cover “Big Law” or “Big Business” nor do we usually comment on criminal law, all LB specialties, but some LB posts just stimulate thought and, in this case, memories.

So it is with the recent post by Dan Slater on how Judge Richard Posner, U.S. Court of Appeals, 7^th Circuit, allowed the “Ostrich Instruction” in a criminal jury trial (“Conrad Black’s Sentence Upheld; 7th Circuit OKs Ostrich Instruction”). We’ll pass on commenting on the criminal matter under discussion in the post.

Instead, the concept of an “Ostrich Instruction” reminded me of our firm’s experience with a civil matter, specifically an adverse possession matter that also involved a jury trial. I believe that without being aware at the time, we were confronted with a similar concept which, with apologies to Judge Posner, we will call the “Ostrich Defense.”

An earlier post on this blog generally described the concept of adverse possession ("Losing Your Property Rights Through Inattention". For the sake of brevity, we will now simply say it is a claim that you own part or all of your neighbor’s property after a prescribed period of claimed continuous possession; there is more to it, of course, and for the rest I refer you to the earlier post.

The “Ostrich Instruction,” in a criminal context, is explained by LB in its post with a quote from Judge Posner, who coined the term, as follows:

An “ostrich instruction,” Posner explains, “tells the jury that to suspect that you are committing a crime and then take steps to avoid confirming the suspicion is the equivalent of intending to commit the crime.” Posner also clears up a fallacy: The legend that ostriches bury their head in the sand when frightened, he says, is “pure legend and a canard on a very distinguished bird.”).

The situation involving our derivative “Ostrich Defense” was as follows: In New York, for adverse possession, it is a settled principle that when claiming ownership of a neighbor’s property, the claimant’s knowledge of the actual boundary lines is not all that relevant. However, acknowledgment of the boundary lines would soundly defeat the claim. 

In our adverse possession case, the claimant maintained he could not possibly have acknowledged the boundary lines because he never had knowledge of the boundary lines. This, despite signing numerous documents submitted to municipal authorities that did acknowledge the boundary lines. He claimed to have signed the documents in blank so he never could have had the requisite knowledge. 

There was, of course, cross-examination (by our firm’s other partner Beverley Rogers) and the jury found for our client, the property owner. On appeal, the claimant dropped the adverse possession claim and tried only for a prescriptive easement, where you have right to use but do not own the property. That failed too, the appellate case is 40 AD3d 577, 834 N.Y.S.2d 330 (2d Dep’t 2007).

Well, how do you cross-examine a witness who is relying on the “Ostrich Defense?” Persistently. In this particular case, it was a matter of allowing the claimant to bring out his own inconsistencies.

On the other hand, could the “Ostrich Defense” actually be effective? I have to concede it could be a legitimate and effective defense in a civil matter under the right circumstances.

But, that would be a different case and a different post.

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