STUDENT CASE COMMENT: Adverse PossessionThird and Fourth Departments Provide Guidance on 2008 Amendments to RPAPL Article 5

By Alexander J. Nicas
In July 2008, the New York Legislature amended Article 5 of the Real Property Actions and Proceedings Laws (RPAPL).1 Sec. 501(2) of the newly amended act states: [a]n adverse possessor gains title to the occupied real property upon the expiration of the statute of limitationsprovided that the occupancyhas been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.2 Although the legislature noted that any amendments applied to all claims led on or after July 2008,3 uncertainty lingered as to how the legislation would affect a claim that allegedly vested4 under the previous statute. On March 19, 2010, the Appellate Division, Fourth Department claried this issue in Franza v. Olin.5 The plaintiff in Franza contended that the amendments were unconstitutional as applied to her because they deprived her of a vested property right. The Supreme Court, Onondaga County, dismissed the petition on the ground that plaintiffs useslawn mowing, landscaping, and erection of a shed and satellite receiverwere permissive and not adverse under the newly enacted RPAPL 543.6 The Fourth Department reversed, stating: where title has vested by adverse possession, it may not be disturbed retroactively by newly-enacted or amended legislation.7 The court further held: inasmuch as title to the disputed property would have vested in plaintiff prior to the enactment of the 2008 amendments, we conclude that application of those amendments to plaintiff is unconstitutional.8 A few months later, the Appellate Division, Third Department addressed the retroactive application of the 2008 amendments to a claim of a prescriptive easement in Barra v. Norfolk Southern Railway Co.9 To succeed on a prescriptive easement claim, a plaintiff must show that the use was open, notorious, continuous and hostile10 for the prescriptive period.11 Recognizing that statutory changes affecting the laws of adverse possession concomitantly alter the common law doctrine of prescriptive easement, a ruling regarding the applicability of the 2008 amendments was necessary.12 Quoting Franza, the court stated: should plaintiffs succeed in proving their claims, titles to the easement would have vested prior to the effective date of the amendments and, consequently, [they] may not be disturbed retroactively by newlyenacted or amended legislation.13 When advising clients regarding adverse possession or prescriptive easements, it is important to ascertain the date when property rights have vested in light of the 10-year statute of limitations for actions to recover possession of real property.14 If this date is before the effective date of the new statute, the Appellate Division decisions allow litigants to apply the old version of Article 5 of the RPAPL.
2. 3. REAL PROP. ACTS 501(2) (McKinney 2010). Ch. 269 9, 2008 N.Y. Laws, McKinneys Session Law News of N.Y., WL NY-LEGIS 269 (2008). Legal title vests in the adverse possessor at the expiration of the statute of limitations, assuming all necessary elements have been satised for the required duration. 73 A.D.3d 44, 897 N.Y.S.2d 804, 2010 N.Y. Slip Op. 02224 (4th Dept 2010). Under the former version of 512(1), land was deemed to have been possessed and occupied if it had been usually cultivated or improved. Evidence proffered by the plaintiff, and subsequently rebutted by current 543, may have been sufcient to satisfy her burden under the old standard. Franza, 72 A.D.3d at 47, 897 N.Y.S.2d at 807, 2010 N.Y. Slip Op. 02224 at *2. Id. at 47-8, 897 N.Y.S2d at 808, N.Y. Slip Op. 02224 at *3. 75 A.D.3d 821, 2010 N.Y. Slip Op. 06036, 2010 N.Y. App. Div. LEXIS 5903 (3rd Dept 2010). Ch. 269 2, 2008 N.Y. Laws, McKinneys Session Law News of N.Y., WL NY-LEGIS 269 (2008) (Hostility has been eliminated. The statute now only recognizes a claim of right to satisfy the element of adverse possession.). Barra, 75 A.D.3d at 823, 2010 N.Y. Slip Op. 06036 at *2, 2010 N.Y. App. Div. LEXIS 5903 at *4. Id. at n.5. Id. at 826, 2010 N.Y. Slip. Op. 06036 at *4, 2010 N.Y. App. Div. LEXIS 5903 at *10 (quoting Franza v. Olin). N.Y. CPLR 212.

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Endnotes
1. Ch. 269, 2008 N.Y. Laws, McKinneys Session Law News of N.Y., WL NY-LEGIS 269 (2008).

Alexander J. Nicas is a secondyear student at St. Johns University School of Law and a Staff Member of the N.Y. Real Property Law Journal.

NYSBA N.Y. Real Property Law Journal | Winter 2011 | Vol. 39 | No. 1

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