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Irwin Law
Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 7355
Experience:  Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
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I'm purchasing a one acre parcel in New York that has an adverse

Customer Question

,I’m purchasing a one acre parcel in New York that has an adverse possession (AP) issue. This vacant parcel separates land that I currently own and the land of a local Farmer by 66’ wide for the length of 660’.
The current owner of this parcel, a Developer, possesses the property with warranty deed in fee simple which is recorded at the county clerk. He’s held this property since 1970’s and paid taxes yearly.
The Developer’s parcel is surveyed and it matches the iron pins. Also, measuring the Farmer’s land demonstrates that his deed description fits his property line and width. This also matches current tax maps and other survey maps. There appears to be no question of deed or survey errors.
In 1985 the Farmer created an AP issue by adding a large addition to his barn which now spans 35’ wide and over 25’ onto Developer’s parcel in question. The Farmer’s deed history traces to a 1905 deed granting his relatives a property of exactly 162’ wide and 660’ long. The Farmer has a well maintained fence, lawn, and several barns that are built up to but are fully contained within the area described by the Farmer’s deed. I suspect with the hostile intention of taking this additional 66’ wide parcel, the farmer expanded his barn. The original barn was built on a concrete foundation with wood exterior walls. The addition has no foundation and the wooden walls rest directly on the ground. The exterior of the addition is sheetmetal and it has a dirt floor inside with several simple horse stalls. The different construction techniques clearly highlight the delineation between the Farmers deeded property line and the portions across the boundary of the Developer’s parcel, a stark contrast to all other barns and fences of the Farmer that run to but not over his deeded property line.
Learning about the encroachment, in 1987 the Developer and Farmer discussed a sale of the parcel to the Farmer. The Farmer refused to purchase that parcel at any price. In 1988 the Developer decided to attempt legal action and then sought a temporary injunction against the Farmer. I have yet to see the documents, but the injunction was denied by the judge. The Developer, not wanting to waste any more time or money on the parcel, pursued no further action.
The Farmer never pursued an AP or quiet title action against the Developer and continued to use the barn from 1988 to 2012. During that time, several very large trees had fallen on the northern half of the parcel and it has remained wild. The southern half of the parcel near the barn has been used as the Farmer’s dumping ground for several large piles of debris, paint cans, trash, old boards, used carpet, etc with a small lawn around the piles.
In 2012 the Farmer and wife deeded their property to their life estate and remainder to their daughter and son-in-law using the Farmer’s original deed description that does not include this parcel in question or mention of any buildings or structures. Again in 2014, the Farmer, estate of wife, daughter, and son-in-law, deeded the property to the Farmer’s life estate and remainder to just his daughter, once again, using the original deed dimensions with no mention of any buildings or the Developer’s parcel.
Regarding the strength of any possible AP claim by the Farmer or assigns:
1) The Farmer’s Deed history and recent new Deeds never mentions the encroaching barn or underlying lands or the lands of the Developer’s parcel. Has the Farmer or the Daughter lost privity, specifically with the 2012 and 2014 deeds, and therefore tacking of adverse possession to any assigns?
2) In 2008 NY changed the AP law. Now de-minus nonstructural encroachments don't count towards AP including sheds. Is there any opinion or case-law on what qualifies as a shed? Construction-wise, a simply barn with dirt floor and no foundation is very similar to a large shed.
3) The 2008 NY revision now requires a ‘claim of right’. Could the Farmer make a ‘reasonable basis for the belief that the property belongs to the [Farmer]’ when his deed history and description appears to very clearly not include the Developer’s parcel?
4) I’ve seen courts apply the pre-2008 law when AP ripened before the law changed. The statute of limitations is 10 years. Do we have any opinions on whether the courts will still allow application of the prior law after 2018? Better yet, does a ripened adverse possession claim ever time out in NY if title hasn’t been acquired by some future date?
5) I don’t yet know what transpired between the Farmer and Developer after the Developer failed to pursue further legal action. I will investigate this more. If the Developer just eventually decided to give the Farmer oral permission to use his land would that still hold up in court today? Would the Developer need to provide a sworn affidavit and would that even be admissible and most importantly, would that have permanently stopped the clock on adverse possession?
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
If I purchased the 66' wide parcel and the Farmer was agreeable and I provided written non-exclusive, revocable permission for the Farmer and his assigns to use the land under his barn, agreeing it is not an easement or transfer of title and both the Farmer and I signed, would that nullify any possible AP claim, even if the farmer might have a 10-year vested AP?If I purchased the parcel and the Farmer is hostile what other action or steps might I take or investigate to strengthen my defense against an AP claim?Can I repossess the land by also using and improving it for a 10-year period?NY case law citations or source backing any answers please.
Expert:  Irwin Law replied 1 year ago.
What an interesting situation. Frankly I enjoy the subject of adverse possession and would be happy to discuss all of the issues that you have raised; however what you are asking me to do is Spend about $2,000 worth of time researching New York case law. If you are willing to drop the case law citations requirement, and agree to a telephone consultation for a slight increase in the amount you have offered, I think I can be of substantial assistance to you.
Expert:  Irwin Law replied 1 year ago.
Hello again. Do you have a follow-up question? I am not an employee of Just Answer and I receive credit for assisting you based on your rating. I hope that you will enter a positive rating for my assistance here by clicking on 3, 4, or 5, for which there is no additional cost to you. Thanks again for using JUST ANSWER.