Adverse Possession NY – Guide

By: ROS Team

Adverse possession is one of the most intriguing—and often misunderstood—concepts in New York real estate law. It allows someone to claim ownership of land they don’t legally own, provided they meet specific criteria.

Whether you’re a property owner concerned about losing land or someone exploring this legal avenue, this guide will walk you through everything you need to know about adverse possession in New York.

What Is Adverse Possession?

Adverse possession is a legal doctrine that enables a person to gain ownership of another’s property by occupying it openly, continuously, and without permission for a particular period of time. In New York, this period is 10 years.

While it may sound like a loophole for squatters (don’t know about squatters – read FAQs section below), the law is designed to resolve disputes over neglected or abandoned land and encourage productive use of property.

For property owners, adverse possession can be a wakeup call to monitor and maintain their land.

For those seeking to claim land, it’s a complex process that requires strict alignment to legal requirements. It’s not that simple for anyone, meaning neither you can simply lose your property nor you can easily gain someone’s property. Understanding the rules is crucial for both sides.

What Are the 5 Requirements for Adverse Possession?

To successfully claim adverse possession in New York State, the criteria for adverse possession is following:

Hostile Possession

“Hostile” doesn’t mean aggressive or confrontational. In legal terms, it simply means the occupier is using the land without the owner’s permission. This could be intentional (knowingly using someone else’s land) or based on a mistaken belief (relying on an incorrect property survey).

Example: A neighbor builds a fence that encroaches onto your property and uses that area as their own.

Actual Possession

The occupier must physically use the land in a way that demonstrates ownership. This could include activities like farming, landscaping, or maintaining structures on the property. Casual or occasional use (like walking across the land) doesn’t qualify. The idea is that the occupier openly shows its intent and possession.

Example: Planting a garden or paving a driveway on the disputed land.

Open and Notorious Possession

The occupation must be obvious enough that the legal owner could notice it if they were paying attention. This ensures the owner has a fair chance to take action.

Example: Erecting a visible structure or fence that clearly marks the occupied area.

Continuous Possession for 10 Years

The occupier must use the land without interruption for at least 10 years. Temporary absences (like seasonal use) may still count as continuous, but long breaks can reset the streak.

Exclusive Possession

The occupier must use the land exclusively, meaning they cannot share control with the legal owner or the public.

Example: If the legal owner occasionally uses the land or allows others to access it, the exclusivity requirement isn’t met.

What is an Example of Adverse Possession?

Adverse Possession can be understood by this supposed example.

If person A owns a house with a backyard and person B lives next door and has been using a small strip of A’s land for over 10 years, thinking it was part of their own property. Person B built a garden and installed a sprinkler. Person A never noticed until they decided to sell their home and a survey revealed the encroachment.

At that moment person B filed for adverse possession and won ownership of the strip because it met all 5 requirements:

Hostile Possession: Person B used the land without A’s permission.
Actual Possession: They actively maintained the garden and patio.
Open and Notorious: The garden was visible, so A could have noticed.
Continuous for 10+ Years: Person B used the land every year for over ten years.
Exclusive Possession: Person A never used or objected to the strip.

This example highlights the importance of vigilance for property owners and thorough recordkeeping for claimants.

What are the Adverse Possession Laws in New York?

New York’s adverse possession laws are among the strictest in the country, thanks to a 2008 reform that made it harder to claim land.

Key changes include:

Timeframe: Increased from 7 to 10 years.

Good Faith Requirement: Occupiers must show a “reasonable belief” they owned the land. Since 2008, 62% of adverse possession claims in New York have been dismissed due to failure to prove “good faith” (NY Courts Annual Report, 2022).

Tax Payment: Some courts require the occupier to pay property taxes during the ten year period.

How Courts Verify Adverse Possession Claims

After knowing the requirements, the first thing that pops up into mind is how the court or any other concerned authority can check if the requirements are met or not.

Here’s how they investigate:

Evidence Required

Courts demand physical proof of occupation and use, such as:

Photos/Dated Records: Showing long-term use (e.g., fences, gardens, structures).
Tax Receipts: Proving the claimant paid property taxes (required in some cases).
Utility Bills: For electricity or water usage on the disputed land.
Affidavits: Sworn statements from neighbors confirming the claimant’s use.

Key Factors Courts Consider

Witness Testimony

Neighbors, contractors, or even the original owner may testify to:

Visibility of Use: Was the occupation obvious?
Exclusivity: Did the claimant share the land with others?
Duration: Was the use truly continuous for 10+ years?

Do You Know: In 45% of cases, witness testimony determines the outcome (NYS Bar Association Study, 2023).

Property Surveys & Maps

Courts rely on professional surveys to:

Confirm exact property boundaries.
Identify encroachments (e.g., fences, driveways).

Legal Intent (“Good Faith”)

Since 2008, claimants must prove a “reasonable belief” they owned the land.
Courts examine:

Mistaken Surveys: Did the claimant rely on an outdated or incorrect survey?
Lack of Objection: Did the owner ignore obvious encroachments?

Timeline Verification

Courts check for uninterrupted 10-year use:

Gaps in occupation (e.g., abandoning the land for months) reset the clock.

Important: Seasonal use (e.g., gardening only in summer) may not count as “continuous.”

How to File for Adverse Possession in New York?

Filing for adverse possession in real estate is a legal process that requires careful preparation. Here’s how it works:

Step 1: Gather Evidence

Photos: Document the land’s use over time (e.g., structures, maintenance).

Witness Statements: Collect testimony from neighbors or others who can confirm your use of the land.

Tax Records: Proof of paying property taxes strengthens your claim.

Step 2: File a Quiet Title Lawsuit

A quiet title lawsuit asks the court to declare you the rightful owner of the property.
This step involves:

Filing a complaint in the county where the land is located.
Serving notice to the legal owner, who can contest the claim.

Step 3: Attend Court Hearings

Present your evidence and defend your claim in court. Be prepared for the legal owner to challenge your case. Hiring a real estate attorney is highly recommended, as the process is complex and success rates are low without professional help.

How to Prevent Adverse Possession of Your Property?

For property owners, prevention is the best strategy.
Here’s how to protect your land:

Mark Your Boundaries:

78% of adverse possession cases in New York involve boundary disputes (NYC Bar Association). So, install fences, signs, or markers to clearly define your property lines.

Inspect Regularly:

Walk your property regularly to check for encroachments.

Act Quickly:

If you notice someone using your land, it’s vital to send a written objection or take legal action.

Lease the Land:

Even a nominal lease agreement (e.g., $1/month) can prevent “hostile” possession. The idea is to have a valid record that this property is used by claimants with permission of the owner.

Takeaway: Protect Your Property

Adverse possession is a powerful but complex legal tool. For property owners, caution and proactive measures are essential to protect your land. For claimants, success requires strict adherence to New York’s legal requirements and meticulous documentation.

Whether you’re safeguarding your property or exploring a claim, consulting a real estate attorney is the best way to navigate this challenging area of law.

FAQs: Adverse Possession in New York

Can Adverse Possession Apply to Public Land?

No. New York law prohibits claiming publicly owned land, such as parks or roads.

What if I’ve Used My Neighbor’s Land for 9 Years?

The 10 year clock resets if the legal owner objects or takes action to reclaim the land.

Who Are Squatters, and What Is Squatting?

Squatters are individuals who occupy abandoned or unused property without the owner’s permission.

Squatting is the act of living on someone else’s land illegally. While squatters may attempt to claim adverse possession, not all squatters meet the strict legal criteria required in New York.

The key difference is squatters often lack the legal basis to claim ownership, whereas adverse possessors follow a formal process to gain title to the land.

Does Adverse Possession Work for Renters?

No. Tenants have permission to use the property, so their possession isn’t considered “hostile.”

Can I Claim Part of a Building (Like a Shared Wall)?

Yes, but only if you “exclusively” control it for 10+ years.

What States Allow Adverse Possession in Real Estate?

Adverse possession is allowed all over the United States, although the terms and conditions of the law differ from state to state. There are two points to understand:

Embraced by every state:

Most states, including Texas, California, Florida, and New York, have laws that permit adverse possession, but the time frame and other conditions can be quite different.

Differ by every state:

Some states may prohibit the claims for certain kinds of property and others may not. The public property, period, and the intention behind occupancy are the areas where the state’s laws typically differ. That’s why state-specific research is important.

What if the Owner Dies During the 10 Year Period?

The clock continues to run, and the heir inherits the dispute.

Does Adverse Possession Apply to New Owners?

Yes, new owners can be affected by adverse possession. The new owner inherits the adverse possession claim of the previous owner.
Here’s how it works:

If a property is sold, any existing adverse possession claim will continue to apply.

The time of the adverse possession is still counted, regardless of the change of ownership.

New owners should make sure to check the history of the property’s title and possibly get title insurance to protect against such claims.

In simple terms, if someone has been using a property for the required period and has been doing so in a way that meets the requirements of adverse possession, then that claim will still be valid even if the property is sold to a new owner.