Hot Docs: Adverse possession still happens

April 5, 2012

adverse possessionOnce in awhile, we come across a new ruling or law that would make a great question for a law school exam.

As of late, the majority of these new legal developments seem to be only pertinent in a constitutional law class.

Thanks to a new ruling from New York’s highest court, though, we have a great new ruling on one of everyone’s favorite property law topics: adverse possession.

It all started in the early 1960s.

The homeowners on several beachfront lots on Oak Beach in the town of Babylon, at the town’s request and at their own expense, had wooden jetties constructed on said lots to inhibit beach erosion.

It’s kind of a complicated situation with the ownership of the land: the town owns all of the beachfront property, and enters into long-term lease agreements with individuals, who own the houses situated on the leased land.

In any case, that fact is irrelevant to the case, but worth noting because the homeowners mentioned from here on will be referred to as “leasing” the lots, not owning them.

Robert Becker leased lot 29 and Nancie Gordon leased lot 30, and both were beachfront lots for which Becker and Gordon were directed to build jetties by the town.

Within two years after those were finished, Becker erected a four-foot dock using the jetty for support and added an extension to an existing boardwalk to reach the dock.

From around 1963 until 1984, Becker alone maintained (i.e. repaired and painted) the dock and boardwalk.

In addition, during that period, Becker and Gordon, as well as other neighbors, believed those structures were located on Lot 29.

Further, starting in the early to mid 1960s, Becker impliedly permitted several neighbors to freely use the dock and boardwalk, but did not allow strangers access to or use of these structures.

In 1984, Gordon had her property surveyed.

The survey indicated that the jetties were misaligned by approximately five feet, which mean that a portion of the boardwalk and the entire dock that Becker had constructed, were actually located on her property.

Gordon showed the survey to Becker, and the two “had a good laugh about it.”

Gordon allowed Becker to continue to use the boardwalk and dock as he always had, even though “everybody knew that those structures were located on [Gordon’s] property.”

In 2004, though, Gordon sold her house on lot 30 (and transferred her leasehold interest) to Owen Murtagh, who wasn’t quite as accommodating as Gordon.

Murtagh advised Becker that he was no longer allowed to use the boardwalk or dock, and the next year, Becker commenced a legal action claiming that he had acquired the land on which the structures in question were situated on through adverse possession.

Hot Doc: Estate of Becker v. Murtagh

Source: Thomson Reuters News & Insight – National Litigation

Makes a perfect exam question, right?

Anyhow, back to adverse possession, which occurs when five conditions are met:

(1)    hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party),

(2)    actual,

(3)    open and notorious,

(4)    exclusive, and

(5)    continuous for the statutory period (ten years in New York).

The only two elements that were disputed before the court were the “hostile” and “exclusive” elements.

Despite the fact that Becker let a few neighbors use the boardwalk and dock, the court found that he exercised “exclusive” control over the property regardless, since he refused to allow strangers to use the structures.

Though hostility is presumed where the rest of the elements are met, the element was still a bit more problematic, since Gordon’s explicitly allowing Becker’s use of her property effectively nullifies the presumption of hostility.

However, the court found that adverse possession did occur – between 1963 and 1984.

Thanks to a 1920 case, adverse possession may occur even when both parties are mistaken as to where the property lines are drawn.

Thus, even though neither party knew at the time of the structure’s construction that Becker had actually trespassed onto Gordon’s property, and that even when Gordon later discovered this fact and gave Becker permission, adverse possession had occurred.

This goes back to the hostility presumption: even though it is likely that Gordon would have given Becker permission, she didn’t ever do so during the first 20 years of the structure’s existence, and so, without any evidence to the contrary, the hostility element is presumed to have been met.

This little twist at the end makes it all the more perfect an exam question.

Yet, for any students who end up seeing this scenario or a variation thereof on their property law final, they can take solace in knowing that the facts of the test are inspired by actual events, and that the knowledge they are applying can actually be used in real life.