Adverse Possession: What Every New York Land Owner Must Know | Part Three

Published 04 February 2020 by Offit│Kurman

This is part three of a four-part series. Read parts one and two.

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RPAPL §§ 512 and 522

To take land through adverse possession, an adverse possessor must also comply with either RPAPL §§ 512 and 522. These additions to the law further elaborate on the requirements of notice and exclusivity. To be clear, these requirements are in addition to the requirements listed above. They refer to adverse possession under a written instrument or judgment (RPAPL § 512) or without a written instrument or judgment (RPAPL § 522). However, the requirements of these two sections are identical, except for cases of farmland or timber growing real estate as outlined below.

1. Notice

Both RPAPL §§ 512 and 522 require “acts sufficiently open to put a reasonably diligent owner on notice.” The requirement of “acts sufficiently open to put a reasonably diligent owner on notice” is a 2008 revision from the previous, more limited standard that required “usual cultivation or improvement” of the land. The amendment applies to all cases filed on or after 2008 and does not apply when the adverse possession ripened before 2008.[1] As such, cases interpreting this new test are scarce, though the previous cases are still helpful since the new test is less narrow than the old one.

As an example, in a case of a lake bottom property the location and perimeter of the claimed area were easily discernible based upon the visibility of the mooring balls attached to each mooring anchor. This became even more apparent when boats were actively moored to them. The installation, seasonal use, and maintenance of these moorings persisted every boating season, all of which was clearly evident.[2]

2. Exclusivity

In the alternative to “acts sufficiently open to put a reasonably diligent owner on notice,” adverse possession can occur if the occupied land is “protected by a substantial enclosure.”

A chain-link fence suffices as a substantial enclosure.[3] A substantial enclosure may provide notice of boundaries.[4] The enclosure need not be complete.[5] Even a chain link fence slightly less than 3 feet high can suffice.[6] Where it is disputed whether a wall is sufficient as an enclosure, it should be considered whether the wall itself is a sufficient improvement that is sufficiently open to put an owner on notice.[7] A beach house may also suffice as an enclosure.[8]

3. Farming Land

A third – highly specific – alternative to notice and exclusivity, adverse possession can occur if the occupied land has been “used for the supply of fuel or of fencing timber, either for the purposes of husbandry or for the ordinary use of the occupant.”[9] This must be also obvious, continuous, and regular.[10]

This only applies if the required claim of right of the adverse possessor was based on a written instrument or judgment, i.e. “conveyance of the premises in question, or upon the decree or judgment of a competent court.”[11] Put differently, the adverse possessor must believe himself to be in the right to possess the land because someone sold it to him or a court gave it to him.

Landowner Takeaway:

If your property is farmland that allows for fuel or timber cultivation, look out for people doing that.


[1] Estate of Vertley Clanton v. City of New York, 2017 NY App. Div LEXIS 6219 (2d Dep’t 2017).[2] LS Mar., LLC v Acme of Saranac, LLC, 2019 N.Y. App. Div. LEXIS 5622 (3d Dep’t 2019) (applies former test)

[3] Slacer v Kearney, 151 AD3d 1602, 1604 (4th Dep’t 2017)

[4]Ray v Beacon Hudson Mt. Corp., 88 NY2d 154 (1996) (holding that a parcel was substantially enclosed by permanent stone path, terraced rock garden, and other natural objects)

[5] Brown v. Doherty, 93 A.D. 190 (1st Dep’t 1904).

[6] Birnbaum v Brody, 156 A.D.2d 408 (2d Dep’t 1989).

[7] Fatone v Vona, 287 A.D.2d 854 (3d Dep’t 2001) (A wall itself was an improvement, even though the wall was within plaintiffs’ easement for ingress and egress over defendants’ land, it clearly was incompatible with the use of the area as easement and it was more than adequate to give actual notice of the change in use of the land.)

[8] Schoenfeld v Chapman, 102 N.Y.S.2d 235, (Sup. Ct. Suffolk Co. 1950), modified, 280 A.D. 464, (2d Dep’t 1952)

[9] RPAPL § 512

[10] Possession of unoccupied, unimproved, and unenclosed land may be made out by showing that it is a woodlot suitable for an improved farm, from which the farmer has habitually for some years cut his firewood and other forest products (Beers v Hotchkiss, 230 A.D. 447 (2d Dep’t 1930), rev’d, 256 N.Y. 41 (1931)); cutting wood on property, at unspecified times and at unstated intervals, is insufficient to constitute adverse possession (Cameron Estates, Inc. v Deering, 281 A.D. 985 (2d Dep’t 1953), aff’d, 308 N.Y. 24 (1954)); sporadic forays into undeveloped and not readily accessible land on several days during the relevant years to thin out timber for firewood does not establish continuous use of land for purposes of adverse possession (Krol v Eckman, 256 A.D.2d 945 (3d Dep’t 1998).

[11] RPAPL § 511