Lucas A. Ferrara in New York Times Real Estate Section, STILL NINE-TENTHS OF THE LAW, July 2, 2006.   

By: Jay Romano

A RULING handed down last month by the Court of Appeals, New York's highest court, reasserts a centuries-old legal doctrine that allows people who use someone else's land for a certain period of time and under certain conditions to acquire title to it without even paying for it.

The decision was issued by Judge George Bundy Smith in the case of Walling v. Przybylo, in which G. Scott Walling, a lawyer who owned property in Queensbury, in upstate Warren County, brought what is known as an "action to quiet title by adverse possession." The purpose of the suit was to acquire legal title to a portion of a neighbor's property that Mr. Walling had been using for more than 15 years.

"What this decision stands for more than anything else is that adverse possession is alive and well in New York," said James Grossman, a Rochester lawyer and a past chairman of the real property section of the State Bar Association. "Property owners need to know that while adverse possession is not a favored method of securing title, it is a recognized one."

Michael Liss, a real estate lawyer in White Plains, said in adverse-possession cases, which date back to English common law, certain criteria must be met. For example, the adverse possessor's use must be "hostile and under claim of right," he said. In other words, if one neighbor is using another's property with permission, an adverse-possession claim cannot stand.

In addition, Mr. Liss said, the use must be "actual, open and notorious, and exclusive." In other words, the adverse possessor must physically use the land, must do so openly and without attempting to hide his usage, and must do so to the exclusion of the actual owner.

Finally, Mr. Liss said, in New York the use must be continuous for at least 10 years. "And the Walling case is a textbook example of an adverse possession claim," he said.

In May 1986, Mr. Walling and his wife bought a building lot in Queensbury. In 1987, he started using a portion of the property next door by depositing fill and topsoil on it, installing 69 feet of drainage pipe underground and according to the decision, "continuously mowed, graded, raked, planted and watered the grassy area in dispute."

In 2004, Paul and Denise Przybylo, Mr. Walling's neighbors, had their land surveyed and discovered that they owned part of the land he was using. When Mr. Walling learned of this, he brought the action to quiet title by adverse possession.

Having found that Mr. Walling met all the requirements for adverse possession, the Court of Appeals affirmed a lower court ruling awarding him title to the disputed parcel.

Lucas Ferrara, a Manhattan real estate lawyer, said the case was a warning for all property owners who think that neighbors have encroached on their land. What commonly happens, he said, is that one owner erects a fence, a wall or an outbuilding on a neighbor's property, often unwittingly.

"That's why buyers should have a survey done of any property they are buying," Mr. Ferrara said, "and every owner should check their property lines against whatever survey they have."

If a neighbor is using your property, he said, the issue should be resolved immediately and before the 10-year period runs out.

One solution would be to grant the other owner permission, in writing, to continue to use the property, thus preventing any adverse-possession claim. Another way would be to ask the neighbor to remove the encroachment.

"If he refuses," Mr. Ferrara said, "the courts may be the last resort."