Overcoming Land and Development Restrictions

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© Adam Leitman Bailey, P.C. 2016
Overcoming Land and Development
Restrictions: Adverse Possession, Easements
and Other Property Obstacles
June 22, 2016
Fidelity National Title Insurance Services, LLC
Summer CLE

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Adverse
Possession as a
Sword or a Shield
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys

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Adverse Possession Defined: Old Law
To establish adverse possession, the following five
elements must be proved: Possession must be:
1. Hostile and under a claim of right
2. Actual
3. Open and notorious
4. Exclusive
5. Continuous for the required period (10 years)
▫ Belotti v. Bickhardt, 228 N.Y. 296, 302 (N.Y. 1920)
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Under the new law, the requirements under the old
law still exist. However, the amendments have
more narrowly defined what qualifies as actual
possession and what constitutes possession under
a claim of right.
▫ NY CLS RPAPL § 501
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Adverse Possession Defined: New Law

NY CLS RPAPL § 512
Essentials of adverse possession under written instrument or
judgment
“… land is deemed to have been possessed and occupied in any of the
following cases:
1. Where there has been acts sufficiently open to put a reasonably
diligent owner on notice.
2. Where it has been protected by a substantial enclosure, except as
provided in subdivision one of section five hundred forty-three of
this article.
3. Where, although not enclosed, it has been used for the supply of fuel or of
fencing timber, either for the purposes of husbandry or for the ordinary use
of the occupant.”
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Amendments to Actual Possession Requirement

NY CLS RPAPL § 543
Adverse possession; how affected by acts across a
boundary line
1. … the existence of de minimus [de minimis] non-structural
encroachments including, but not limited to, fences, hedges,
shrubbery, plantings, sheds and non-structural walls, shall
be deemed to be permissive and non-adverse.
2. … the acts of lawn mowing or similar maintenance across
the boundary line of an adjoining landowner's property shall
be deemed to be permissive and non-adverse.
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Adverse Possession Defined: The New Law
Amendments to the Actual Possession Requirement
Specific Exceptions

NY CLS RPAPL § 522
Essentials of adverse possession not under written instrument or
judgment
Land is deemed to have been possessed and occupied only:
1. Where there have been acts sufficiently open to put a
reasonably diligent owner on notice.
2. Where it has been protected by a substantial enclosure, except
as provided in subdivision one of section five hundred
forty-three of this article.
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Amendments to Actual Possession Requirement

Claim of Right
The 2008 Amendments went on to specifically
define “Claim of Right” as having “a reasonable
basis for the belief that the property belongs to
the adverse possessor or the property owner as the
case may be.” RPAPL 501(3)
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Claim of Title
Under the old law, knowledge that rightful title belongs
to another did not defeat a claim of right.
Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)
Claim of Right
NY CLS RPAPL § 501(3)
Under the new law, a claim of right means a reasonable
basis for the belief that the property belongs to the
adverse possessor or property owner, as the case
may be.
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Claim of Title (Old Law) vs.
Claim of Right (New Law)

Actual Possession Under the New Law
“De minimus encroachments”
The 2008 Amendments more strictly defined the type
of possession sufficient to uphold a claim of adverse
possession.
A person or entity is an "adverse possessor" of real
property when the person or entity occupies real
property of another person or entity with or without
knowledge of the other's superior ownership rights, in
a manner that would give the owner a cause
of action for ejectment.
• RPAPL 501(1)
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Statute of Limitations for Adverse
Possession
Remains the same under the new law
NY CLS CPLR § 212
Possession necessary to recover real property. An
action to recover real property or its possession
cannot be commenced unless the plaintiff, or his
predecessor in interest, was seized or possessed of the
premises within ten years before the commencement
of the action.
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Walling v. Pryzbylo
Seminole case that prompted the legislature to
amend the adverse possession statute and define a
“claim of right.”

In Walling v. Przybylo, the Wallings and the Przybylos
owned adjoining properties. The Wallings began using a
portion of the Przybylos’ property as their own.
• Bulldozed and deposited fill and topsoil on disputed property
• Dug a trench and installed pipes for the purpose of carrying water to and under the
disputed parcel, ultimately discharging the water in and over the disputed parcel.
• Constructed an underground dog wire fence to enclose their dog and continuously
mowed, graded, raked, planted, and watered the grassy area in dispute.
• Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of
the pipeline.
• Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the
Wallings near the northwesterly corner of the grassy part of the disputed territory.
• Since 1992, the post and birdhouse have remained in place.
▫ Walling v. Przybylo, 7 N.Y.3d 228, 230-231 (N.Y. 2006)
◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes Make Result Less Certain,
2009 The New York L. J., Feb. 11, 2009 at (2009).
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In 2004, the Przybylos discovered that they had title
to the portion of the land that the Wallings had been
using. The Wallings filed suit to quiet title. The
Przybylos attempted to prove that Wallings knew they
did not own the disputed parcel.
Holding: The Court of Appeals held for the Wallings
and declared that “actual knowledge that another
person is the title owner does not, in and of itself,
defeat a claim of right by an adverse possessor.”
▫ Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)
◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes
Make Result Less Certain, 2009 The New York L. J., Feb. 11, 2009 at
(2009).
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• In accordance with the statutory mandate, the Court of
Appeals has ruled, in Estate of Becker v. Murtagh, that
if a claim was filed before the amendments took effect
and rights were vested by adverse possession before
the amendments were effective, the old law will apply.
The Court of Appeals did not address the effect the
new amendments would have on cases brought after
the amendments became effective but where
ownership rights are alleged to have vested prior to
July 7, 2008.
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Court of Appeals
Estate of Becker v. Murtagh

• To date, there is only one Adverse
Possession case decided in the First
Department. Unfortunately while using
cases from the old law, the court did not
specify whether applying the old or new
law.
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First Department Cases

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Historical Photograph
of 63 East 92nd Street
Front Areaway

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Second Department
Cases

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Second Department Cases
• Hartman v. Goldman applied the new
law, even though the alleged adverse
possession would have vested in 1997,
because the parties stipulated that the
2008 amendments applied.

Hartman v. Goldman
The First Case Using the New Law

Actual Possession Under the New Law
“De minimus encroachments”
The First Case Using the New Law
• Section 9 of the Amendments states that the new law
“shall take effect immediately, and shall apply to
claims filed on or after such effective date.”
• However, Courts have recognized that where adverse
possession rights have vested prior to the amendments,
the old law should still apply.
• In Hartman v. Goldman, the alleged adverse possession
rights would have vested prior to the enactment of the
amendments.
• However, due to clever lawyering, defendant’s attorneys
were able to get the plaintiff to stipulate that the new law
applied, and the court did not disturb their stipulation.
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• In Calder v. 731 Bergan, LLC, adverse possession rights
would have vested when the statute of limitations
expired in 1984, but, without taking note of that fact,
the Court nevertheless applied the new law holding
that, upon the facts alleged, the plaintiffs had a
reasonable basis for their belief that the disputed
parcel had been conveyed to them in 1974 by the US
Government and had thereby established their claim of
right to the parcel under the 2008 amendments.

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• Wright v. Sokoloff applied the new law because
both the commencement of the claim and the
alleged vesting of the adverse possession rights
occurred after the amendments took effect.

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Second Dep’t Applies Old Law
Hogan v. Kelly
The court held that a “claim of right” could nevertheless
be established, in a case filed after July 7, 2008, where
adverse possession vested prior to that date, regardless
of whether or not the adverse possessor “had actual
knowledge of the true owner at the time of possession,”
citing Walling. As a result the court held that defendants’
knowledge, that someone other than themselves had title
to the property, did not bar the defendants from asserting
a claim of right under pre-2008 adverse possession law.

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Shilkoff v. Longhitano
In Shilkoff v. Longhitano, the court applied
pre-2008 law to a case commenced in 2009
because the alleged adverse possession rights
would have vested prior to the effective date
of the 2008 RPAPL amendments.

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Maya’s Black Creek v Angelo Balbo Realty
In Maya’s Black Creek v Angelo Balbo Realty, the court
declined to decide whether the old law or the new should
apply, and applied both, stating that the plaintiff’s
adverse possession cause of action would be upheld in
either circumstance. However, the court did not state
how the plaintiff had satisfied the requirement of the
2008 amendments that there be a “reasonable basis for
the belief that the property belongs to the adverse
possessor or property owner as the case may be.”

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Third Department
Cases

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Third Department Cases
In Ziegler v. Serrano, the Court applied the new law to a
case where adverse possession had vested in 1995. In
Ziegler, Defendant and her husband owned property as
tenants by the entirety from 1972-1984, at which point
the defendant abandoned her husband and left the
property. Defendant’s husband received judgment for
divorce and partition of the property due to defendant’s
default. Defendant’s husband, now having fee title in the
property, deeded the property to plaintiffs in 1985.
Ziegler v. Serrano

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The plaintiffs then continued to occupy the premises as
their residence. In 1991, upon motion made by the
defendant and her husband, both the divorce and partition
judgments against the defendant were vacated for
improper service. In 1992 defendant sued plaintiffs,
challenging their title to the property. The action was
dismissed due to failure to prosecute. However, in 2008,
plaintiff’s moved to quiet title.
74 AD3d 1610 (3d Dept. 2010).
Ziegler v. Serrano

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Specifically mentioning RPAPL §§501(3) and 511 as amended in 2008, the
Ziegler Court held that plaintiffs’ claim of right was based on a “reasonable
basis” as it was pursuant to a written instrument -- a deed. Because the
plaintiffs entered with a reasonable claim of right and possession and
occupation was continuous for the statutory period, adverse possession was
upheld. The Court acknowledged the holding in Franza and recognized that
title would also have vested under pre-2008 law, but noted that the parties
did not question the propriety of applying the 2008 legislation, and, therefore,
the Court declined to address the issue. The Court held that a claim of right
based on a deed is a reasonable basis for a claim of right under both the new
law and the old law.
Ziegler v. Serrano

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In contrast, in Barra v. Norfolk S. Ry. Co., a case
commenced in March of 2009, the Third Department
applied the old law because title by adverse possession
would have vested before the adverse possession statute
was amended. Plaintiffs owned land adjacent to railroad
tracks owned by the defendant. In March 2008, defendant
closed the middle crossing. Plaintiff claimed, among other
things, that they acquired a prescriptive easement for
ingress and egress over the northern crossing.
Barra v. Norfolk S. Ry. Co.

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The Court held that when all of the elements of a
prescriptive easement are present, except express
hostility, hostility is generally presumed, shifting the
burden to the defendant to show that the use was in fact
permissive. As defendant failed to sufficiently prove that
permission was implied from the beginning, the Court held
that summary judgment for the defendant was
inappropriate.
75 A.D.3d 821 (3d Dept. 2010)
Barra v. Norfolk S. Ry. Co.

Franza v. Olin
73 A.D.3d 44 (N.Y. App. Div. 4th Dep’t 2010)
Fourth Department
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Fourth Department Cases

How To Legally
Encroach On Neighbors
Land or Public Street

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You have one year to
commence action to
remove land if not
exceeding six inches.

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A license for the maintenance of a
front or exterior wall
encroachment on a public street
or highway may be requested of
the local legislative body in a city
with a population of less than one
million persons, a town or a
village.

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Authorizes the maintenance of a
front or other exterior wall
encroachment of not more than
six inches onto a public street or
highway when the encroachment
existed on or before January 1,
1940.

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A front or exterior wall encroachment
erected after January 1, 1940 may
remain if no action or proceeding
requiring removal of the
encroachment is commenced within
one year of the giving of notice of the
encroachment to the appropriate
town or village official.

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Allowing the maintenance of a
front or exterior wall
encroachment of ten inches or
less onto a public street on May
25, 1899.

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Allows any part of a building
projecting into a public street on
January 1, 1938 to remain until its
removal is directed by the City
Council.

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Permits encroachment up to six
inches onto a public street or
highway of the front or exterior
wall of any building erected on or
before January 1, 1960.

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UNDERSTANDING EASEMENTS

CREATION
• Easements can be created in four ways:
▫ Grant,
▫ Implication from prior use,
▫ Implication from necessity, and
▫ Prescription.
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Easements
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• An easement is “an interest in land in the
possession of another which (a) entitles the owner
of such interest to a limited use or enjoyment of
the land in which the interest exists; (b) entitles …
protection … against third persons from
interference in such use or enjoyment; (c) is not
subject to the will of the possessor of the land and
(e) is capable of creation by conveyance.”

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Easement by Grant

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L 80 P394 Sec 5
1) h.
2) H. Cook, Mary ux.
3) Oliver H. Payne
BAP Ely – 5th Av. 32’ 2” S-79th Street
≈S 70’
≈E 115’
≈N 102’ 2”
≈W 15’
≈S 32’
≈W 100’ to PB
Together with an unobstructed easement of light air and
prospect, as the same now exists, for twenty years from
date over the lot of (1) on Fifth Avenue immediately south
of the above described premises said lot being twenty feet
in breadth on said avenue and in the rear by one hundred
feet in depth on each side.
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• When the dominant estate is
transferred, the easement passes to
the subsequent owner through
appurtenance clauses even though
there is no specific mention of the
easement in the deed.

Easement Appurtenant
“TOGETHER, with all right title and interest, if
any, of the party of the first part in and to any
streets and roads abutting the above-described
premises to the center lines thereof; TOGETHER,
with the appurtenances and all the state and rights
of the party of the first part in and to said
premises; TO HAVE AND TO HOLD the premises
herein granted unto the party of the second part,
the heirs or successors and assigns of the party of
the second part forever”
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EASEMENTS BY IMPLICATION FROM PRIOR USE
• There are four requirements needed to create an
easement by prior use.
▫ First, there must be a common grantor at the time
the parcels were split.
▫ Second, there must have been an existing use of
one parcel to benefit another.
▫ Third, the use of the burdened parcel must be
continuous, obvious, and seem permanent.
▫ Fourth, be reasonably necessary to the dominant
land’s use and enjoyment.
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The “necessity” required for an implied easement based
upon preexisting use is only “reasonable necessity,” in
contrast to absolute necessity required to establish an
implied easement by necessity. Four S Realty Co., v. Dynko,
210 A.D. 2d 622, 623, 619 N.Y.S.2d 855, 856 (1994).
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EASEMENTS BY IMPLICATION FROM PRIOR USE

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Easement of
Necessity

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• Imagine a land owner has a fairly
substantial piece of acreage and
decides to subdivide it into lots
and one of the lots the owner
creates is completely landlocked
inside the other lots.
• Paine v. Chandler, 134 N.Y. 385 (1892).
• Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997).

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• As the owner sells off those lots,
the sale creates an easement of
access on those lots enabling the
owner of the landlocked lot to
access the highway.
• Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d
900, 903 (1997).
• Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).

EASEMENTS BY PRESCRIPTION
• An easement by prescription is generally
demonstrated by proof of the adverse, open and
notorious, continuous, and uninterrupted use of the
subject property for the prescriptive period. 315
Main Street Poughkeepsie, LLC v. WA 319 Main,
LLC, 62 A.D.2d 690, 691, 878 N.Y.S.2d 193 (2009);
Hammond v. Zehner, 21 N.Y. 118 (1860)
▫ The prescriptive period is 10 years. 315 Main Street
Poughkeepsie, LLC v. WA 319 Main, LLC, 62 A.D.2d
690, 691, 878 N.Y.S.2d 193, 194 (2009) (citing
N.Y.R.P.A.P.L. §501).
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• There are 8 ways to terminate
an easement:
• Abandonment
• Merger
• End of Necessity
• Demolition
• Recording Act
• Condemnation
• Adverse Possession
• Release

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Abandonment

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• In order to prove abandonment, it is
necessary to establish not only an intention
by the dominant estate holder to abandon
the rights to the easement, but also some
overt act or failure to act, which carries the
implication that the owner neither claims
nor retains any interest in the easement.

Banach v. Homes Gas Co., 12 A.D.2d 373,
211 N.Y.S.2d 443 (1961)
• Issue: Whether the defendant’s easement to lay
and maintain a pipeline over plaintiff’s lands
terminated due to abandonment.
• Rule: Nonuse alone, even for a long
period of time, is not enough to constitute
abandonment. Id. at 375, 211 N.Y.S.2d at
445.
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Banach v. Homes Gas Co., 12 A.D.2d 373,
211 N.Y.S.2d 443 (1961)
Application: Defendant laid a natural gas pipeline four
feet under the ground across plaintiff’s lands. Id. at 374, 211
N.Y.S.2d at 444. Id. Plaintiff brought suit against defendant
to remove pipelines on the basis that easement was
abandoned. Id. Plaintiff’s nonuse of land from 1932 to 1957,
which was when the defendant constructed the pipeline
over plaintiff’s land, does not constitute abandonment.
Further, there was no intention to abandon the easement or
any affirmative conduct inconsistent with the desire to use
the easement. Thus, the easement was not terminated.
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Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178,
197 N.Y.S.2d 161 (1960)
• Issue: Whether there is a potential claim by defendant for the
termination of an easement by abandonment.
• The acts must clearly demonstrate the permanent
relinquishment of all right to the easement. Id. The
“mere use of the easement for a purpose not
authorized, the excessive use or misuse, or the
temporary abandonment thereof, are not of
themselves sufficient to constitute an abandonment.
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Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178,
197 N.Y.S.2d 161 (1960)
• Application: Plaintiffs and defendant were owners of adjacent
residential properties that are separated by a lot called a ‘lane. When
originally divided, the lane was the only possible avenue to a public
street from the defendant’s property.. Defendant constructed a patio
and built fences and enclosures on this land. Plaintiff commenced
action against defendant to remove these encumbrances. The lower
court entered judgment in favor of the plaintiff. Defendant appealed.
Court of Appeals held that encroachments may either be found to
show a present intention not to use the easements so as to
unequivocally demonstrate an abandonment or a deferred use, which
would be consistent with a reliance upon the continued existence of a
property right of way.
• Conclusion: Yes. Defendant might be able to prove that the
easement was abandoned.
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Merger

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• Under the merger doctrine, an
easement will terminate when
the dominant and servient
estates become vested in one
person.

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Demolition

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• An easement in a building or
land will terminate when that
burdened building or land is
completely destroyed.

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Recording Act

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• A good faith purchaser for
value is not bound by an
easement which is not
properly recorded prior to a
purchase of the encumbered
property.

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• The easement does not terminate
notwithstanding a failure to record
the easement if the good faith
purchaser had actual knowledge and
notice of any facts which would lead
a reasonably prudent purchaser to
make inquiries.

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Abuse

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• Abusing the rights one has under
an easement is not a ground for
extinguishing the easement.

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• The mere use of the easement for a
purpose not authorized, the
excessive use or misuse, or the
temporary abandonment thereof, are
not of themselves sufficient to
constitute an abandonment or any
other ground to extinguish the
easement.

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• That is not to say that the servient
estate owner is without a remedy,
but destruction of the easement is
not that remedy.

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Condemnation

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• A government can create an
easement by way of condemnation
• A governmental agency can also
abolish an easement by
condemning it

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Release
• An easement once granted may be
ended by a release in writing stating
that the owner of the easement gives
away all rights and remedies including
the ability to sue under the easement.

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Adversary Demands Property
Owner Vacate Area

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Questions a Witness

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Suggestions For Title
Insurers When Dealing With
Possible Boundary Disputes

The End

Overcoming Land and Development Restrictions

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