Gallet Dreyer & Berkey, LLP | May I Steal A Part Of Your Backyard?
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May I Steal A Part Of Your Backyard?

May 2019 | By: Randy J. Heller, Esq.| GDB 2019 Spring Newsletter
The doctrine of “adverse possession” remains one of the most interesting facets of real property law.  The possibility that your neighbor can magically take ownership of some of your property through your own inattentiveness continues to fascinate and confound homeowners.
 
What makes it so interesting is the counter-intuitive way it works. Giving permission for your neighbor to occupy your land denies him any claim.  But refusing his encroachment may cause you to lose the disputed strip.  Here’s how that dichotomy played out in a recent appellate case.
 
Homeowners Mr. A and Mr. B were next door neighbors in Rye, New York.  In 1977, Mr. A built a tennis court in his yard.  Approximately 22% of the court crossed over into Mr. B’s backyard.  Nothing was apparently said until 2002, when Mr. B offered to sell the strip of land on which the court encroached to Mr. A, who declined the offer.  Thereafter, Mr. A continued to play tennis, with Mr. B’s express permission, for the next decade.
 
In 2012, however, Mr. A wished to resurface his tennis court.  Mr. B (perhaps holding a lingering grudge since his offer was declined in 2002), refused to allow access to Mr. A’s contractor.  Mr. A then brought a lawsuit claiming that he owned the encroaching strip of land by adverse possession.
 
In order to acquire a parcel of land through adverse possession, one needs to satisfy a 5-pronged test.  Basically, one must demonstrate that one’s possession of the land was (1) actual, (2) open and notorious, (3) exclusive, (4) continuous for at least a 10-year period, and (5) hostile.  While the elements of this test were tweaked by the legislature in 2008 to make it slightly harder to “steal” a neighbor’s property, they are similar enough for the purposes of this article.
 
Mr. A argued that his use of the tennis court was open for all to see, exclusive to him, and continuous for well more than 10 years.  The battle lines were drawn, however, on whether his use was “hostile.”  That legal term of art does not require any animus—merely that the neighbor did not consent to its use.  If the use is with the neighbor’s permission, it cannot be deemed to have been “hostile.”  Mr. B argued that at least since 2002, when he offered to sell the strip to Mr. A, he had given express permission to Mr. A to continue to use the encroaching court—thereby negating the “hostile” prong of the test.
 
But Mr. A countered, and the court agreed, that Mr. A had already acquired the strip by adverse possession in 2002, having used the court since 1977 without ever having obtained Mr. B’s permission.  Since Mr. B could easily witness the encroachment (the “actual” and “open and notorious” prongs) and since Mr. A’s exclusive use had continued for over 10 years, Mr. A automatically became the owner by operation of law.  While Mr. B may have given permission in 2002, it was too little and too late.  He’d already relinquished ownership of the strip.  Although the pre-2008 law was applied due to the fact that ownership to Mr. A was alleged to have transferred in 2002, the result would likely be the same under the new law.
 
The takeaway from this case is that you actually protect your property by giving permission to your neighbor to use it.  Once you deny permission, the clock starts ticking on a potential adverse possession claim 10 years down the road.  If an encroachment is operating with your permission, it doesn’t matter if it has been going on for 50 years.  You can withdraw your permission at any time and the land remains yours. 
 
Prior to 2008, one could fairly easily claim ownership of a neighbor’s property by merely mowing that lawn, or cultivating it, or putting up a simple split rail fence.  The legislature made that much tougher and one must now build a much more substantial structure on the land (a tennis court would probably still qualify).
 
But as before, if you sit silently for more than 10 years, watching your neighbor encroach without giving your permission, you may find yourself no longer the owner of that strip of land. 

The ball is in your court.