October 25, 2018

In Slacer v. Kearney, 151 AD3d 1602 (4th Dept. 2017), the Supreme Court granted Plaintiff’s adverse possession claim and the Fourth Department Appellate Division affirmed.

Plaintiff and Defendant owned adjacent properties.  Plaintiff’s chain link fence encroached on Defendant’s land.  Plaintiff commenced an action alleging that she owned the strip of land between the fence and her boundary line by adverse possession.

First, the Court found that the Plaintiff gained possession of the disputed strip of land when she purchased her property in 1986 and therefore, she met the minimum 10-year statutory period.  The Court found that under Section 501(2) of the Real Property Actions and Proceedings Law, upon the expiration of the 10 year statutory period, legal title to the strip of land transferred to her by operation of law and without the need to commence an action.  The Court further stated that title by adverse possession is as strong as one obtained by grant.

The Court further held that the Plaintiff established that her adverse possession claim was “hostile” and under “claim of right.”  Defendant essentially argued that Plaintiff’s survey showed the fence on Defendant’s property and that Plaintiff ought to have known that the strip of land did not belong to her.  The Plaintiff testified that she received the survey only after she closed, she did not understand how to read the survey, she believed that she owned the strip of land, and she cultivated and maintained the lawn on her side of the fence.  The court held that “conduct will prevail over knowledge, particularly where the true owners have acquiesced in the exercise of ownership rights by the adverse possessors.

Based on the foregoing, the Court held that the Plaintiff met the statutory requirements for a claim of adverse possession and that she was the legal owner of the strip of land between her boundary line and fence.

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