Real Estate Litigation

Adverse Possession

"Adverse Possession" is a legal "term of art," which means that one property owner believes that he should own "title" to a piece of real property because he has possessed that piece of property, and that possession was sufficiently open, notorious, exclusive, hostile, continuous and uninterrupted for the required length of time (in New York State 10 years). Courts use this term to determine whether which person owns title to the disputed portion of real estate.

Before a court will divest another of their property, they will consider whether that person's claim to the property was sufficiently "adverse," by looking at all the facts, as follows:

Actual, meaning that the possessor acted like an owner of the property, and may have even paid taxes.

Open and Notorious, meaning that the possessor acted in a manner consistent with the property at issue for others to see. If the actual owner or members of the public saw you, they would believe that you owned the property. A claim of adverse possession is possible regarding a vacation property if it is used during vacation season only. A claim could apply to a parcel of land if maintenance is performed on that land.

Exclusive, meaning that the possessor is not occupying the land with the owner or share possession with the public and is the sole person to treat the property as if he or she is the owner.

Hostile, meaning that the possessor had no permission to utilized the land being claimed. The possession must be "hostile" to the owner's interest.

Claim or Right, meaning that the possessor claims error in the description of the property, or the claim is based on use and possession of the land for the statutory period

Continuous & Uninterrupted, meaning that all of the elements of a claim must exist for the ten year period of time in New York. A present owner may "tack" his claim to the previous owner if the facts warrant such a claim.

The Statutory Period in New York is ten years against a private individual and longer against a municipality.

Partition

When land is owned jointly, by co-tenants, by family members, and even by a combination of corporations, it may be divided through a court ordered procedure known as partition. Jointly owned property is divided. Each owner then owns an interest in a part of the property. Partition may be voluntary or may be ordered by a judge if parties cannot agree to terms. Statutory provisions allow owners of property the right to force a partition sale.