Chicago Title Insurance Company

Ya Gotta Believe!
The Forgotten Element of Adverse Possession
By William Maker Jr.

Make no mistake about it. Adverse possession is alive and well in New York. Our statutes provide for it (N.Y. Real Property Actions and Proceedings Law ‹‹ 511, 512, 521 and 522); our case law supports it. See e.g., Ray v. Beacon Hudson Mountain Corp., 88 N.Y. 2d 154, 666 N.E. 2d 532, 643 N.Y.S. 2d 939 (1996), Gaglioti v. Schneider, 272 A.D. 2d 436, 707 N.Y.S. 2d 239 (2d Depƒt 2000), Guenther v. Allen, 268 A.D. 2d 934, 702 N.Y.S. 2d 678 (3d Depƒt 2000), appeal dismissed, 94 N.Y. 2d 939, 729 N.E. 2d 1153, 708 N.Y.S. 2d 353 (2000) and Parsons v. Hollingsworth,259 A.D. 2d 1054, 688 N.Y.S. 2d 336 (4th Depƒt 1999).

Persons studying for the Bar exam learn the elements of adverse possession by repeating to themselves over and over again the adverse possession mantra - Hostile, Actual, Open, Notorious, Exclusive, Continuous - Hostile, Actual, Open, Notorious, Exclusive, Continuous - Hostile, Actual, Open, Notorious, Exclusive, Continuous. See e. g., MAG Assocs. v. SDR Realty, Inc., 247 A.D. 2d 516, 517, 669 N.Y.S. 2d 314, 315-16 (2d Depƒt 1998), Robarge v. Willett, 224 A.D.2d 746, 747, 636 N.Y.S.2d 938, 940 (3d Depƒt 1996) and Dittmer v. Jacwin Farms, Inc., 224 A.D. 2d 477, 478, 637 N.Y. S. 2d 785, 785-86 (2d Depƒt 1996). But there is one more phrase in that chant. One that is often overlooked or under appreciated. For possession to qualify as øhostileÓ, the adverse possessor must enter the property øunder a claim of rightÓ. Because they never took First Year Real Property, Mark and Elizabeth Whitcombe were unaware of this additional requirement. It cost them their home.

Mark Whitcombe has lived on City Island in the Bronx since the 1950ƒs. By 1982, he and his wife, Elizabeth, were at their witƒs end dealing with their landlord. They noticed that the bungalow at 98 Ditmars Street was empty and the grounds overgrown. Although local legend called 98 Ditmars one of the øMulford lotsÓ, no one had seen Mrs. Mulford for quite some time. The Whitcombes concluded that she had abandoned the bungalow so they moved in to get away from their obnoxious landlord.

The Whitcombes turned the abandoned property into a nice place to live. They had telephone and electrical service installed; they pulled out the weeds which had been strangling the yard; they made physical improve- ments; they built an artistƒs studio and placed a sign on the lawn so patrons could come to browse and buy their creations.

At some point, the Whitcombes øheardÓ that the Mulfords had sold 98 Ditmars. As with the Mulfords before them, these new owners didnƒt question the Whitcombesƒ right to be there and so the Whitcombes decided to øjust sit hereÓ. In fact the only communication - if you can call it that - between the Whitcombes and the Mulfordsƒ successors was the delivery of the real estate tax bills and gas company invoices by the Whitcombes to a friend of the Whitcombes who was supposed to relay them on to the new owners.

For over fifteen (15) years, this was the status quo. Finally in 1998, the man with the stove pipe hat and the mustache curled at the ends came on the screen to the hisses and boos of the audience, clearly audible over the dirge being played on the piano. There was a mortgage foreclosure.

The Whitcombes were served with a notice to vacate. They balked at being pushed out of their home. Their refusal to leave led to an ejectment action in which the Whitcombes counterclaimed for title by adverse possession.

After discovery elicited the facts recited above, the plaintiff moved for summary judgment. Thinking that issues of fact existed, the Bronx Supreme Court denied the motion. That order precipitated the appeal entitled, Joseph v. Whitcombe, 279 A.D. 2d 122, 719 N.Y.S. 2d 44 (1st Depƒt 2001).

The First Department framed the legal issue this way. ø[P]ursuant to the doctrine of adverse possession, [can] mere occupancy for an extended period of years coupled with open conduct consistent with ownership, but absent an initial claim of right,Þ ripen into an ownership interest by virtue of the occupancy.ÓId. at 124, 719 N.Y.S. 2d at 46. The best the Whitcombes could muster to hurdle this bar was Elizabethƒs written averment and Markƒs deposition testimony.

Elizabeth: ø[Our] ownership arose from [our] lengthy possession coupled with ¥the work we have put into both the house and the propertyƒ.Ó

Mark: ø ¥Iƒve always felt it was mine. [H]ereƒs my point of view. Every house next to me is [in] a floodplain. Nobody really in their right mind is going to walk into a perfectly lovely neighbor- hood and just walk into a building and say this is mine, but when itƒs so overgrown and so awful and it floods so much that I thought to a certain extent itƒs a fairly heroic effort to try and reclaim a place to live out of this place that floods up to [three inches] and itƒs notoriously dangerous just to simply be living there. So the very fact that I was living there I felt that itƒs mineƒ.Ó Id., 719 N.Y.S. 2d at 45-6.

Alas, this was not enough. The Whitcombes may have demonstrated each of the øone-wordÓ elements of the adverse possession mnemonic, but they didnƒt show that their initial occupancy was øunder a claim of rightÓ. All of their proof dealt with øactivities after commencing occupancyÞÓ Id. at 126, 719 N.Y.S. 2d at 47 (emphasis supplied). While these events pointed to øthe adverse and hostile nature of the occupancy, defendants misunderstood the fundamental requisites of entering under a claim of right, necessarily relating to circumstances pre-dating and contemporaneous with the initial act of occupancy.Ó Id. at126-27, 719 N.Y.S. 2d at 47 (emphasis supplied).

Why the Court stressed the øclaim of rightÓ factor lay in its unvoiced recognition of the value of title insurance. Adverse possession developed (and where properly invoked, continues) to fix øuncertain boundariesÓ, to protect øparties acting with or taking from the adverse possessor in reliance on the apparent ownership, [thereby] ensuring the continuing productivity of the land.Ó Id. at 125, 719 N.Y.S. 2d at 46. Adverse possession is not meant to encourage the taking of land though. Its øunderlying purposeÞ was stability and regularity rather than rewarding unlawful possession.Ó Id.

øThe modern system of registering titles has largely displaced instances of adverse possessionÞ ø Id. at 126, 719 N.Y.S. 2d at 47. Over time surveying property lines and insuring titles have had the salutary effect of rooting out conflicting claims of title.

Together they have relegated adverse possession to a lesser position in the pantheon of real property law so that it now only øoccasionally arises in New York where boundaries or the ownership of rural lots have remained imprecise over a period of years.Ó Id. (A classic understatement to which any urban or suburban practitioner who has closed titles to properties surrounded by walls, fences, trees, or shrubs can attest!).

For their failure to enter 98 Ditmars under a øclaim of rightÓ, the Whitcombes were characterized as ø[a]t bestÞ squatters [acquiring] rights no greater than those afforded squatters.Ó Id. at 127, 719 N.Y.S. 2d at 47-8. Accordingly they had not acquired title by adverse possession and were compelled to surrender their home of nineteen years.

Ironically, six weeks after Whitcombe, the Second Department weighed in on the importance of a øclaim of rightÓ. Bockowski v. Malak, 280 A.D. 2d 572, 720 N.Y.S. 2d 557 (2d Depƒt 2001) involved a more common adverse possession situation - an encroaching fence. In 1979, the Bockowskis had erected a 158 foot long fence. The fence lay between three and four feet inside their neighborƒs property. Within the quadrilateral that the Bockowskis had cordoned off, they planted shrubs, bushes and trees. In 1999, the fence was torn down by the Malaks - the new owners of the impacted parcel. The Bockowskisƒ response was an action for adverse possession.

In the course of discovery, the Bockowskis admitted that when the fence was constructed, they knew that it was being erected on land that did not belong to them. This admission led to the dismissal of their claim. øThe plaintiffsƒ possession of the disputed parcel of property was never under a claim of right. Mere possession, no matter how long continued, gives no title.Ó Id., 720 N.Y.S. 2d at 558.. See also, Giannone v. Trotwood Corp., 266 A.D. 2d 430, 431, 698 N.Y.S. 2d 698, 700 (2d Depƒt 1999) (ø[I]n the absence of a valid claim of right, the mere possession of land gives no titleÓ) and Soukup v. Nardone, 212 A.D. 2d 772, 774, 623 N.Y.S. 259, 261 (2d Depƒt 1995) (ø ¥The mere possession of land without any claim of right, no matter how long it may be continued, gives no titleƒ .Ó ).

Often in cases of adverse possession, the record owner seems to face an impossible task. The encroaching wall has existed from time immemorial; the neighbors have annexed the disputed parcel to their own and for years have treated the area as if it were part of their yard. Add to the mix the legal principle that øan inference of hostile possession or claim of right will be drawn when the other elements of adverse possession are established.Þ Ó Gerlach v. Russo Realty Corp., 264 A.D. 2d 756, 757, 695 N.Y.S. 128, 130 (2d Depƒt 1999). See also, City of Tonawanda v. Ellicott Creek Homeowners Assƒn, 86 A.D. 2d 118, 121, 449 N.Y.S. 2d 116, 119 (4th Depƒt 1982), appeal dismissed, 58 N.Y. 2d 824 (1983). This inference will be overcome, however, by øan admission by the party in possession prior to the vesting of title that title belongs to anotherÞ Ó MAG Assocs. v. SDR Realty, Inc., 247 A.D. 2d 516, 517, 669 N.Y.S. 314, 316 (2d Depƒt 1998) (emphasis supplied). See also, City of Tonawanda v. Ellicott Creek Homeowners Assƒn, 86 A.D. 2d 118, 124, 449 N.Y.S. 2d 116, 121 (4th Depƒt 1982) (øWith respect to Anderson, the record contains clear evidence of his admission during the statutory period that title rested in another; hence his adverse possession claim must fail.Ó).

Therein lies the lesson. Whenever faced with a claim of adverse possession, the record owner should devote its energies in discovery to determining whether the adversary had known all along - or had acknowledged prior to the expiration of the statutory period - that the ground over which the battle is being fought was owned by another. If so, the record owner should prevail. One particularly fruitful area of inquiry is whether the putative possessor ever sought to purchase the parcel in dispute since øan offer made by one in possession without title to purchase from the record owner during the statutory period is a recognition of the record ownerƒs title and prevents adverse possession from accruing.Ó Manhattan School of Music v. Solow, 175 A.D.2d 106, 107, 571 N.Y.S.2d 958, 960 (2d Depƒt 1991), appeal dismissed and leave to appeal denied, 79 N.Y.2d 820, 588 N.E.2d 89, 580 N.Y.S.2d 191(1991).

The foundation for all of the cases cited above can be found in the Court of Appeals decision of Van Gorder v. Masterplanned, Inc., 78 N.Y. 2d 1106, 585 N.E. 2d 375, 578 N.Y.S. 2d 126 (1991). There the grant of summary judgment to an adverse possessor was reversed in a one paragraph decision.

Inasmuch as a triable issue of fact exists as to whether plaintiffs, who claim to have acquired title to defendantƒs property by adverse possession, acknowledged during the statutory ten-year period that actual wnership of the property rested with defendant, summary judgment should not have been awarded to plaintiffs. Such a concession, if found by the trier of fact to exist, would negate an essential element of plaintiffsƒ adverse possession claim, namely, that they continued to possess the property under a claim of right throughout the statutory period. Id., 585 N.E. 2d at 376, 578 N.Y.S. 2d at 127.

The rule pronounced by the Court of Appeals is very clear. A øconcessionÓ by the would-be adverse possessor øduring the statutory ten-year period that actual ownershipÞ rested with [the owner of record]. . . negate[s] an essential element of [an] adverse possession claim.Ó The First, Second and Fourth Departments have fallen in line behind this straight forward enunciation. A wholehearted reliance on Van Gorder may not work in the Third Department, however. In Birkholz v. Wells, 272 A.D. 2d 665, 708 N.Y.S. 2d 168 (3d Depƒt 2000), the record owners of the contested property defended their title relying on the proposition that øbecause defendants were aware during the statutory 10-year period that they did not own the disputed property, they failed to establish the essential element of possession that was hostile and under claim of right.Ó Id. at 666, 708 N.Y.S. 2d at 170.

Though citing Van Gorder, the Court addressed the issue from a decidedly øanti Van GorderÓ perspective. In our view, plaintiffsƒ analysis focuses far too much on defendantsƒ state of mind, ie. what they knew or reasonably should have knownÞ and far too little on their actions. Id. at 666, 708 N.Y.S. 2d at 170 (emphasis supplied).

But isnƒt the adverse possessorƒs østate of mindÓ - its knowledge regarding the ownership of the property - exactly what Van Gorder and its progeny tell us to look into? Isnƒt øwhat they knewÓ and øwhen they knew itÓ at the very core of the claim? How can one enter property under a øclaim of rightÓ if one knows he has no right to be there?

Despite the well-developed New York case law in this area, the Third Department quoted from an early 19th century Connecticut case - French v. Pearce, 8 Conn. 439 (1831) - to justify its approach.

¥Into the recesses of [the adverse claimantƒs] mind. . . no enquiry is madeÞ [I]t is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor.ƒ 272 A.D. 2d at 666, 708 N.Y.S. 2d at 170.

The relevancy of French v. Pearce is questionable - not only because it comes from another state - but because it was not a case of a usurper who invaded property that he knew he did not own. Rather it dealt with a situation where the adverse possessor mistakenly believed his possession to have been lawful. In that context, the language quoted by the Third Department can be reconciled with the concept that an adverse possessor must take control of the site under a claim of right. If the possessor believes his occupancy is rightful, he should not be ejected because his belief was erroneous. After all, thatƒs what a claim of right is a mistaken, but sincere, - belief that you own the disputed parcel. That is hardly the same as rewarding a trespasser who tries to wrest away something he knows is not his.

Adding to the confusion, the doctrine announced in French v. Pearce has evolved in Connecticut to the point where even a person who is aware that he is not the owner can gain title by adverse possession. Ruick v. Twarkins, 171 Conn. 149, 158, 367 A.2d 1380, 1385 (1976) (ø ¥[T]itle may be acquired even though the possessor knows that he is occupying wholly without rightÞƒ ø). This philosophy is clearly at odds with Van Gorder and perhaps for that reason Birkholz does not cite Ruick.

The Third Department did seek comfort from two old Court of Appeals cases - Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913) and Barnes v. Light, 116 N.Y. 34, 22 N.E. 441 (1889). Rather than support the mutiny, however, in the latter case, the Court of Appeals gave a preview of Van Gorder.

As the plaintiffƒs claim of title was not founded upon a written instrument, judgment or decree, it was necessary for him to show an actual continued occupation of the premises under a claim of title, not founded upon written evidence, exclusive of any other right. 116 N.Y. at 37, 22 N.E. at 442 (emphasis supplied).

From there the Third Department cited some of its own more recent precedents. Notably, three of those decisions pointed out that the adverse possessors actually thought the land in question was theirs. See Robarge v. Willett, 224 A.D. 2d 746, 747, 636 N.Y.S. 2d 940 (3d Depƒt 1996) (øPlaintiff believed the land was hers and used it accordinglyÓ), West v. Tilley, 33 A. D. 2d 228, 230, 306 N.Y.S. 2d 591, 594 (3d Depƒt 1970) (ø[W]hen asked if by the construction of the . . . wallÞ it was her intention to intrude on appellantƒs land, her reply was ¥we were only enclosing our own property.ƒ Later she testified that it had always been her claim that she owned appellantƒs landÞÓ) and Bradt v. Giovannone, 35 A.D. 2d 322, 325-26, 315 N.Y.S. 2d 961, 965 (3d Depƒt 1970) (øPossession is not the less adverse because a person takes possession of the land in question innocently and through mistake, it being the visible and adverse possession, with an intention to possess the land occupied under the belief that it is the possessorƒs own that constitutes its adverse character, not the remote belief of the possessor.Ó)(emphasis supplied).

What is puzzling is that if adverse possessorsƒ actions, rather than their belief, are what counts, why would the Court have stressed the state of mind of the adverse possessors in each of these cases? Under the Third Departmentƒs interpretation of the law, the adverse possessorƒs belief should be irrelevant.

Toward the end of Birkholz, the Court does try to reconcile its decision with Van Gorder. øViewed in the light of the controlling legal standards, the trial evidence by no means requires a finding that, during the 10-year statutory period, defendants or their predecessors in title recognized or acknowledged any superior claim to the disputed property.Ó Birkholz v. Wells, 272 A.D. 2d 665, 667, 708 N.Y.S. 2d 168, 171. However, by this point in the decision - having framed the issue using some pre-Van Gorder cases and Connecticut common law - it is not at all certain that the Whitcombes would have lost their home if they had lived in Albany County.

The majority of states agree with New York that proof of adverse possession must be by clear and convincing evidence.

See e.g., Brown v. Gobble, 196 W. Va. 559, 474 S.E. 2d 489 (1996); Davis v. Parke, 135 Ore. App. 283, 898 P.2d 804 (1995); Hollaway v. Hartley, 668 So. 2d 23 (Ala.Civ.App. 1995); Harkins v. Fuller, 652 A.2d 90 (Me. 1995); Sierens v. Frankenreider, 259 Ill. App. 3d 293, 632 N.E.2d 1055, 198 Ill. Dec. 444 (1994); Gorte v. Department of Transp., 202 Mich. App. 161, 507 N.W.2d 797 (1993); Inch v. McPherson, 176 Ariz. 132, 859 P.2d 755 (1992); Blankinship v. Payton, 605 So. 2d 817 (Miss. 1992); Locke v. OƒBrien, 610 A.2d 552 (R.I. 1992); East Lizard Butte Water Corp. v. Howell, 122 Idaho 686, 837 P.2d 812 (1991); Grappo v. Blanks, 241 Va. 58, 400 S.E.2d 168 (1991); Williams v. Howell, 108 N.M. 225, 770 P.2d 870 (1989); Yliniemi v. Mausolf, 371 N.W. 2d 218 (Minn.App. 1985); Crigger v. Florida Power Corp., 436 So. 2d 937 (Fla.App. 5 Dist. 1983); Benavides v. Steward, 655 S.W.2d 298 (Tex.App.- Corpus Christi 1983) and Carpenter v. Ruperto, 315 N.W.2d 782 (Iowa 1982).

There are some states, however, which allow adverse possession to be proven by a mere preponderance of evidence.

See e.g., Moore v. Dudley, 904 S.W. 2d 496 (Mo. App. E.D. 1995), Dugan v. Jensen, 244 Neb. 937, 510 N.W. 2d 313 (1994), Davis v. Konjicija, 86 Ohio App. 3d 352, 620 N.E. 2d 1010 (1993) and Potlach Corp. v. Hannegan, 266 Ark. 847, 586 S.W. 2d 256 (1979).