The Latest on Adverse Possession in NY

2010 saw the chaos predicted for the 2008 amendments to New York's adverse possession law erupt into full flower. While the 2008 amendments were well intentioned and even made sense insofar as it took de minimis acts like mowing a piece of one's neighbor's lawn out of the doctrine of adverse possession, where they introduced a "reasonable basis for the belief that the property belongs to the adverse possessor" into the law of adverse possession, they transformed adverse possession law from purely objective to largely subjective. This is particularly dangerous for the title industry as the title of a person down the string of title now relies on what someone was thinking up the string of title, perhaps decades earlier.

One major controversy in 2010 in adverse possession was whether the 2008 amendments could consistent with constitutional due process clauses apply to facts which arose prior to the amendments. The courts first determined whether the adverse possession amendments were procedural or substantive rights. Rarely does one have a due process claim to a particular procedure, but they do attach to the property the procedure affects.

Franza v. Olin, 73 AD3d 44, 8897 NYS2d 804 (4th Dept. 2010), established that the 2008 amendments could not constitutionally be applied in 2010 to strip title by adverse possession from one whose rights had fully ripened under prior law. Thus the instabilities created under the 2008 amendments are mostly applicable to titles by adverse possession when the adverse act first occurred after 1998* because under the normal rules of adverse possession, it takes ten years to establish such a claim. However, for anything after 1998, the new unstable, untested, and hazardous rules control. Franza is being followed throughout the state.

See: Barra v. Norfolk Southern Railway Company, 75 AD3d 821, NYS2d (3d Dept. 2010)

* But see, Ziegler v. Serrano, 74 AD3d 1610, —NYS2d— (3d Dept. 2010) where, in dicta, the court left open the question of the propriety of applying the 2008 statute to older facts. Sawyer v. Prusky, 71 AD2d 1325, 896 NYS2d 536 (3d Dept. 2010) applied the 2008 law to older facts without hesitation, but it is questionable whether the Third Department in even this short span of time may not regard its own Sawyer decision as good law.