Common encroachment issues among neighbors and possible remedies

Shared driveways, alleyways between houses, or fences along a property line are all common encroachments subject to claims of adverse passion. Depending on the value of the real estate in question, neighbors may resort to lengthy and expensive litigation in an effort to claim land measuring no more than a few feet.  

Adverse Possession

In New York, under the doctrine of adverse possession, ownership of real property is transferred to a person who exercises exclusive physical possession of that property for a certain period of time. The elements of an adverse possession claim require that possession of land be: (1) hostile and under a 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), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of at least 10 years.

Essentials of Adverse Possession Not Under Written Instrument or Judgment

For the purpose of constituting an adverse possession not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:

(1) Where there have been acts sufficiently open to put a reasonably diligent owner on notice.

(2) Where it has been protected by a substantial enclosure, except as provided in subdivision one of section five hundred forty-three of this article.  N.Y. RPA. § 522.

Adverse Possession; How Affected by Acts Across a Boundary Line

Pursuant § 543, "notwithstanding any other provision of this article, the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse." (note: de minimus is not defined, thus, the encroachment could be significant in value depending on the location and value of the real estate). Furthermore, "notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse."

There are several solutions to encroachment issues with your neighbors. One solution is granting your neighbor permission in the form of a letter to use the land. In your letter, be sure to establish ownership when granting permission to avoid claims to location. You may also want to attach a survey to the agreement, so that the parties can agree to the proper boundary line. Another solution includes creating a boundary line agreement with your neighbor. The boundary line agreement should identify the location of the property, parties involved, and boundary in question. The agreement should be signed by the parties and notarized.

If you are considering selling your home, or in the process, and believe you may encounter an issue arising from an encroachment, please feel free to call our office for assistance.