The Lawletter Vol 36 No 3, November 11, 2011
Scott Meacham, Senior Attorney, National Legal Research Group
Anyone pursuing a claim for adverse possession must assert that he or she is acting under a "claim of right," essentially a claim of ownership. This requirement traditionally has not presented a very high hurdle, but it and its statutory offspring recently came to the fore in the case of Hogan v. Kelly, 927 N.Y.S.2d 157 (App. Div. 2011).
At common law, an adverse possession claimant did not need believe that she had somehow acquired actual title to the disputed property or that a title search would show the land to be owned by her rather than by another. Indeed, even a claimant who had actual knowledge of another party's ownership was permitted to assert a "claim of right." All that was needed was for the possessor to claim the disputed land as her own. It is this sense of the "claim of right" that persisted in New York jurisprudence for decades following the state legislature's codification of the elements of adverse possession in section 501 of the Real Property Actions and Proceedings Law. See id. at 159.
In 2008, however, the legislature redefined what it meant to assert a "claim of right." Now, a claimant seeking to acquire title by adverse possession had to have a reasonable basis to believe that the property (already) belonged to him or her. It was this potentially confusing amendment that took up much of the discussion in Hogan.
In Hogan, the adverse possessor, Dorothy Kelly, accepted a deed to the residence she occupied in Brooklyn in 1996. The grantor was the brother of the deceased former owner. The house was actually owned by the decedent's sole heir at law, his daughter, who lived in Panama. The daughter did not visit the United States and learn of the house until 2008, by which time Kelly had been living there for more than the required period of 10 years. The executor of the estate sought a declaration of the parties' rights, and the trial court found Kelly to be the owner of the house by adverse possession.
On appeal, the executor claimed that Kelly had been aware of the decedent's daughter and of her rightful ownership—and, thus, that Kelly had failed to assert a "claim of right" under the new definition of that phrase. After all, the suit had been filed in 2009, after the amendment to the real property law had become effective. However, the appellate division declined to apply the amendment, since a retroactive application would have deprived Kelly of an already vested property right. Id.
Thus it appears that the meaning of the 2008 amendment to the real property law is likely to remain uncertain until 2018, when the first claims to have matured under its aegis begin appearing. And what happened to Kelly's claim for the Brooklyn residence? Although the appellate division declined to throw out her "claim of right" under the old common-law standard, it found that she had in fact paid rent to the property owner during 1994 and 1995. In New York, "[a] finding that [Kelly] occupied the premises as [a] tenant without a written lease would raise a presumption of nonadversity for 10 years from the last payment of rent and require that a minimum period of 20 years elapse from the last payment of rent for [her] occupancy to ripen into adverse possession." Id. at 160 (citations omitted).