Follow-up: New York's Revised Adverse Possession Law
In a prior post, we reviewed news reports that New York had revised its adverse possession law and asked readers to stay tuned because we had not seen the law or any analyses of it by legal commentators.
As a comment to that post, Kathleen Walling, apparently a party in the Court of Appeals Walling v. Przybylo case, provided the text of the bill signed by the governor and comments to the bill by the New York State Bar Association. Some technical glitches garbled a few worDs in the comment but the context makes the Bar's general meaning clear. According to news media, the new law was intended to reverse the holding in the Przybylo case. Apparently, the Bar Association did not like the bill because they recommended a veto.
The issue was whether an adverse possessor should have a reasonable basis to believe the adverse possessor owns the property being claimed. The Bar Association did not believe the bill (now law) would accomplish its purpose.
I have a lot of respect for the Bar Association’s analyses of legislation, especially when it concerns how a law may be interpreted and applied. However, once a bill becomes law, what counts is how the courts will interpret it. For that, we will have to wait.
For this blog, our perspective is to review developments in litigation and try to derive better management practices. We cover real estate cases as “business litigation” because the business of some of our clients is real estate investment (albeit not in a Donald Trump scale) and for others the home is one of their biggest investments. We draw insights from business litigation not juston how to prevent litigation or win but also to promote productive business practices.
From that perspective, our view of adverse possession remains the same. It is not going to be abolished because it does serve a positive purpose in certain situations to resolve boundary and title issues.
However, both title owner and potential adverse possessor benefit form simple practices: obtain and learn to read a survey, walk the property lines and address encroachments well before adverse possession becomes an issue (10 years in New York, 15 years in Connecticut). There is almost no downside to these procedures for either party. We are not suggesting that every boundary dispute can be prevented. But then, we are identifying better practices, not trying to find guarantees.
