Adam Leitman Bailey, P.C. Prevails at the Appellate Division in Adverse Possession Case of First Impression

By Adam Leitman Bailey

In a case of first impression in the Second Department involving the law of adverse possession, the Appellate Division has ruled that pursuant to the amendment to Real Property Actions and Proceedings Law §543, de minimus non-structural encroachments are, as a matter of law, deemed permissive and non-adverse and cannot support a claim for adverse possession.

In Hartman v. Goldman, Adam Leitman Bailey, P.C. successfully represented the Goldman family before the Supreme Court and the Appellate Division. The Plaintiffs, adjacent property owners, claimed that they were entitled to adversely possess or own a strip of land which was on the Goldman’s’ property.

Plaintiffs claimed that they relied on a survey obtained in 1987 when they bought their property.  They argued that for more than twenty years they planted new foliage and shrubbery, landscaped the strip, mowed the lawn, and installed lights thereon. Although they later found that the survey was incorrect, they nonetheless maintained that they satisfied the elements necessary to obtain the strip by adverse possession.

The Appellate Division, however, rejected these claims.

It explained that while prior to the new law being enacted, “the existence of the kinds of non-structural encroachments and maintenance listed in RPAPL 543 could be considered in determining whether the plaintiff had shown that he or she usually cultivated, improved, or substantially enclosed the land…”

In other words, under the previous adverse possession law, our adversary had a good chance of winning their case.  But since our adversary decided to apply the new law to the facts of the case in its pleadings and motion, the court would not disturb this decision and would apply the new law for the first time in a Second Department case.

However, under the “plain terms” of the new law, “plaintiffs’ planting of foliage and shrubbery, and landscaping and lawn maintenance are de minimis and deemed permissive and non-adverse,” and cannot be used to claim the Goldman’s land.

In addition, the court found that the new law (RPAPL 543) also applied to the driveway lights. As a result, plaintiffs’ claims alleging that they obtained the disputed strip by adverse possession were dismissed in total.

Adam Leitman Bailey prevented the Goldman’s property from being absconded and prevailed in all aspects of the litigation.

Adam Leitman Bailey argued the case before the State Supreme Court and Jeffrey R. Metz argued the Appeal in front of the Appellate Division. John M. Desiderio drafted a substantial portion of the briefs.

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