Dan's Papers - August 22, 2008 - Adverse Possession

Did you know that if you take possession of somebody else's property for 10 years and the owner doesn't kick you off, you can own it? I didn't either until it happened to me. It's called "adverse possession," it's really quite remarkable, and it's the law.

At the present time, there are two extraordinary cases involving adverse possession going on in this area - one in Montauk, which just this past week has drawn to a close, and the other at the far other reaches of Long Island in Brooklyn, which has just begun.

My own situation with adverse possession took place in 1977 when I bought the property where I presently live on Three Mile Harbor Road in East Hampton. The owner of this property, which is a half-acre overlooking the water, walked me around and proudly showed me the place, including the front yard, which was substantial enough to throw a ball around in.

At the closing, however, I learned that one-half of the front yard actually did not belong to the property being sold. It belonged to a neighbor, but it had been part of the front yard of this property for more than 20 years. That day, sitting in the chair at the closing, I was presented with the option of either not buying the house, or going ahead with the house, knowing that I'd have to deal with this situation. I went ahead. And then, rather than begin the worry that might be involved with my making an ownership claim of this triangular piece of my front lawn, I simply bought it from the neighbor. And that was the end of the problem.

To prove adverse possession in New York State, you must "fly the flag," which is to say, actively and aggressively take possession of the property, inform the person who owns it you are doing so, fence it off and wait 10 years. If there is no objection, it's yours. And if there is an objection and you can persuade a judge you've done all that, it is also yours.

Montauk's Rusty Leaver owns a 24-acre ranch out toward the lighthouse called Deep Hollow Ranch, where he grazes horses and cattle. Ten years ago, he created a four-house development along the property line on one wooded side of the pasture. As an incentive, he offered prospective buyers a view of pastureland forever. He couldn't guarantee the whole ranch, but he did offer an adjacent part of his land, 2.8 acres, a narrow strip directly in front of the four houses, as a scenic and conservation easement to be administered by the town. Horses and cattle would graze there forever.

This worked fine for a while. The four houses together would own the land as an association. And Leaver was happy to give it up. He could use it for grassland anyway.

Two years ago, however, a man who bought two of the four parcels, Jim Esposito, started building his house there, and demanded that Leaver remove his livestock and move back the split rail fence. He wanted the open land. Leaver no longer owned it. He didn't like big animals, apparently.

In a flurry of activity, it was learned that the charge given to the town to administer this property was that they should find uses for it that would allow the owners of it, the association, to enjoy it for "recreational use." This is not what was intended. But there it was.

Leaver sued, saying his animals on the property established adverse possession. But a judge has now ruled that his keeping his livestock there was only by permission of the owners, which was the association he set up to own it. Therefore, it was just the equivalent of a long-term tenancy. It did not qualify for adverse possession. Leaver now has to move his pasture fence a few hundred feet away from the edge of the current pasture on that side. And the homeowners can now enjoy "recreation" on the pastureland. Oh, well.

While this lawsuit is winding down, another one, in Brooklyn, is heating up.

Eight years ago, a man named Darren Miller saw a five-acre empty lot on Erskine Street near the Belt Parkway in Brooklyn and figured that nobody would notice if he charged people to park their cars on it.

When that worked out pretty well, he paved the property and put a fence around it. It is today, or it was until last Wednesday, a well-known parking lot, with a booth and signs and Miller there to take the money, which was $200 a month per car.

Last Wednesday morning, the City of New York had Miller arrested. Turns out this vacant lot is owned by the City of New York. They came there demanding he close his business, and when he refused, they charged him with trespassing, being in possession of stolen property (several cars on the lot had been abandoned there by people who had run off) and operating an illegal dump (the stolen cars). They hauled him off to jail. He is there today. And the police have shut down the operation.

Miller's lawyer, Vincent Gerardi, says that things probably wouldn't have come to this if Miller, last year, hadn't decided that he ought to clean things up by taking legal possession of his property through "adverse possession." Nobody had ever bothered him. He was there near to 10 years. So he went before a judge and started the process. And boom.

One can almost see the bureaucrats in the City of New York, checking the law, checking the calendar and noting they just had a few months to act with this guy. And if they didn't, five precious acres of the City of New York would be gone forever. Couldn't have that.

Reporters interviewed a truck driver named Keith Taylor who for years had parked four trucks on the property. "I thought this was a legitimate parking lot. Where am I going to go now? I can't park them on the street," he said. Well, he'll think of something.