YET, IT WAS TOO EARLY TO DECIDE ADVERSE POSSESSION CLAIM
When two adjoining property owners purchased their respective lots, they were unaware of any encroachments, until July 2013, when “195” commissioned an architectural survey which revealed that “197’s” fifth floor extended onto 195’s property by about a foot.
In response, 195 filed suit with the New York County Supreme Court seeking ejectment and trespass-related damages, and 197 countered with an “adverse possession” claim. After the latter’s request for a motion for summary judgment (seeking a pre-trial disposition of its claims) was denied, an appeal followed.
On its review, the Appellate Division, First Department, reiterated the factors which would support an adverse possession finding:
“As a party seeking title by adverse possession, defendant is required to demonstrate, by clear and convincing evidence, that it possessed the disputed property in a matter that was adverse, under claim or right, actual, open, notorious, exclusive, and continuous for a period of 10 years …. Moreover, … defendant must also demonstrate that there have been ‘acts sufficiently open to put a reasonably diligent owner on notice’ or that the disputed property was ‘protected by a substantial enclosure.’”
Since it agreed that there were “triable issues of fact” as to whether these elements had been met in this case, the AD1 thought that the underlying motion had been appropriately denied.
Now that’s an adverse, adverse-possession determination ….
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DECISION