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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 21, 2020

Maintaining and Using Disputed Property Insufficient, Without More, to Support Claim for Adverse Possession

On June 3, 2020, the Second Department issued a decision in Finger v. 162 Grand St. Realty, LLC, 2020 NY Slip Op. 03098, holding that maintaining and using disputed property was insufficient, without more, to support a claim for adverse possession, explaining:

A party seeking to obtain title by adverse possession must prove by clear and convincing evidence the following common-law requirements of adverse possession: that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years. Additionally, under the law in effect when title allegedly vested in the plaintiffs by adverse possession, where, as here, the adverse possession is not founded upon a written instrument, the possessor must also establish that the disputed property was either usually cultivated or improved or protected by a substantial inclosure.

We agree with the Supreme Court’s determination denying that branch of the plaintiffs’ motion which was for summary judgment declaring that they had acquired title to the disputed property by adverse possession, as they failed to establish, as a matter of law, that the disputed property was either usually cultivated or improved or protected by a substantial inclosure. Further, we agree with the court’s determination granting the defendant’s cross motion for summary judgment, in effect, declaring that the plaintiffs are not the owners of the disputed property by adverse possession, and dismissing the amended complaint. The defendant established, prima facie, that the plaintiffs’ acts of maintaining and using the disputed property did not satisfy the statutory requirement of usual cultivation or improvement, and that the disputed property was not protected by a substantial enclosure. Additionally, the defendant established, prima facie, that the plaintiffs’ possession of the disputed property was not under a claim of right.

(Internal quotations and citations omitted).

We frequently litigate disputes over the sale or leasing of commercial property. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you are involved in a dispute regarding a commercial real estate transaction.

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