If you think adverse-possession disputes only occur in the "wilderness" of upstate New York, or the outer reaches of Long Island, think again. It turns out that these kinds of claims are even being made in the City of New York and can impact one's backyard or driveway (if you're fortunate enough to have one). By way of example, in Duckworth v. Ning Fun Chiu, a Queens County Supreme Court judge was asked to decide whether a neighbor's use of a "three-foot-wide concrete side yard" comprised a "prescriptive easement" over the property.
A prescriptive easement--or "easement by prescription"--is an implied right to use another's land. It differs from an adverse-possession claim because an ownership interest in the parcel is not being sought. Rather, the claim seeks to formalize a right to utilize the property for a specific purpose. Although this entitlement can also be created without express written approval or formal recording, the elements are slightly different from those examined in an adverse-possession dispute. With unrecorded easements, it is usually required that the use be "adverse, open and notorious, continuous and uninterrupted" for at least ten years. According to the caselaw, when someone is able to prove the existence of these elements, there is then a presumption that the property's use was "hostile." The burden then shifts to the owner to refute the claim and show that the utilization was with consent--or "permissive" in nature.
After a nonjury trial, Queens County Judicial Hearing Officer Allen Beldock concluded that Ning Fun Chiu--the actual property owner--was aware of Duckworth's use of the side yard and had approved of same, as a matter of "neighborly accommodation." Absent the required "hostility," Duckworth's "prescriptive easement" claim was rejected by both the trial court and the Appellate Division, Second Department. And, it would seem very likely that Duckworth's permission to use the property was revoked as a result of this case's outcome.
Now, how neighborly is that?
For a copy of the Appellate Division's decision in Duckworth v. Ning Fun Chiu, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_07139.htm
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For our other blog posts on the topic, please click here: Adverse Possession
For more on "easements" and "presriptive easements," please click on the following link: Easement Overview