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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 11710
Experience:  I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
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Hello, I live in New York State and have a questions about

Resolved Question:

Hello, I live in New York State and have a questions about real estate law and adverse possession. About nine or ten years ago, my neighbor asked if he could connect a piece of his fence from his own fence to mine to enclose his yard. I told him I would prefer that he did not, but he did it anyway. He is notoriously mean, so I was afraid to say anything and just let it go. Therefore about 3-4 feet of my back yard extends outside my fence and is enclosed inside his. People have told me that if I don't ask him to move it, I will lose my land--he will get, at best, XXXXX XXXXX and, at worst, adverse possession of my land if I don't ask him to remove it before NY's statute of limitations runs out. I read the NYS property law, and it seems that if I read 543 with the other adverse possession parts, putting up a fence isn't enough to gain adverse possession. Is this true? I'd love to avoid confrontation with this neighbor. If this is not true, what is the statute of limitations in NYS? I think I read somewhere that it was ten years, but I can't find it on the internet. Also, is writing him a letter, asking him to take down the fence enough to stop the adverse possession, even if he doesn't take it down? I really don't have the money to pursue legal action against this neighbor, and he is the type of person who I do not believe will be nice about this.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Andrea, Esq. replied 1 year ago.

Hi, my name is XXXXX XXXXX I will be assisting you. If I have not answered your question, please let me know and I will be glad to explain further.


You can prevent your neighbor from acquiring title by adverse possession, and an easement by prescription if you give him permission to use that part of your property on which his fence is located. By giving him permission, he will not meet the requirements set forth in the New York Real Property Actions and Proceedings Law ("RPAPL") Section 501 that the possession be "adverse, hostile, and notorious". And the period of time required for acquiring title by adverse possession if 10 years and can be found in the New York Civil Practice Law and Rules ("CPLR") Section 212

I have reprinted those sections for your reference below:

 

 

New York Real Property Actions and Proceedings Law Section 501 states the following:

 


§ 501. Adverse possession; defined.

For the purposes of this article:


1. Adverse possessor. A person or entity is an "adverse possessor" of
real property when the person or entity occupies real property of
another person or entity with or without knowledge of the other's
superior ownership rights, in a manner that would give the owner a cause
of action for ejectment.


2. Acquisition of title. An adverse possessor gains title to the
occupied real property upon the expiration of the statute of limitations
for an action to recover real property pursuant to subdivision (a) of
section two hundred twelve of the civil practice law and rules, provided
that the occupancy, as described in sections five hundred twelve and
five hundred twenty-two of this article, has been adverse, under claim
of right, open and notorious, continuous, exclusive, and actual.


3. Claim of right. A claim of right means a reasonable basis for the
belief that the property belongs to the adverse possessor or property
owner, as the case may be. Notwithstanding any other provision of this
article, claim of right shall not be required if the owner or owners of
the real property throughout the statutory period cannot be ascertained
in the records of the county clerk, or the register of the county, of
the county where such real property is situated, and located by
reasonable means.

 

 

New York Civil Practice Law and Rules ("CPLR")



§ 212. Actions to be commenced within ten years. (a) Possession
necessary to recover real property.
An action to recover real property
or its possession cannot be commenced unless the plaintiff, or his
predecessor in interest, was seized or possessed of the premises within
ten years before the commencement of the action.

 

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

 

 

 

Customer: replied 1 year ago.

Hi Andrea, I'm not sure if you got my follow-up question, but is it enough to send a letter to my neighbor, certified mail, giving him permission to keep the fence but only while he owns the property and expressly saying it is not an easement by prescription or adverse possession? I am assuming that the easement goes with the property, so if he or I sold, the easement would remain and murk up the title? Thanks! Laurie

Expert:  Andrea, Esq. replied 1 year ago.

Good morning, Laurie,

 

I did not receive any follow up question, other than this one,

 

I do not think it is a good idea to get caught up in talking about "adverse possession" or easement by prescription in your letter. Just say something like, "In the interests of promoting a good neighbor policy, I am permitting you to use ______ inches of my property and limited to the area where you have presently placed your fence. This is not to be construed as a conveyance of any part of my property, or the creation of an easement.........."

Just keep it simple and to the point without using legal terminology, but only for your reference, there are two types of easements which can be granted - (1) An easement appurtenant runs with the land; (2) An easement in gross is granted to the individual and does not get passed on to future owners of the property,

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

 

Andrea, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 11710
Experience: I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
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