The NYT has a lighthearted story by Sam Roberts about an abandoned railroad track right-of-way in Brooklyn. Neighbors have enclosed and taken possession of the strip of land for their own ordinary purposes. Reading the article led me to do some quick research: It turns out that, in 2008, the New York legislature enacted a statutory revision that seems to complicate what otherwise could have been the neighbors’ textbook common law adverse possession claim.
2. Acquisition of title. An adverse possessor gains title to the occupied real property upon the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules, provided that the occupancy, as described in sections five hundred twelve and five hundred twenty-two of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.
3. Claim of right. A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register of the county, of the county where such real property is situated, and located by reasonable means.
What strikes me as interesting, and discordant, about this statutory revision is a statement made by its main sponsor, Elizabeth Little, a Republican state senator from the North Country. In a 2008 memorandum, quoted by Law of the Land, Senator Little wrote:
[If adverse possession claimants] have a reasonable basis to believe that it is their land then that is exactly the good faith dispute over title to real property for which the adverse possession doctrine was established. Adverse possession should be used to settle good faith disputes over who owns land.
This strikes me as a very inaccurate statement of the principles that underpin the doctrine. Adverse possession might occasionally come into play to settle such matters, but ordinary boundary and title disputes are readily addressed with other areas of the common law of property. Adverse possession, in a common analysis, is a teaching that was traditionally aimed at keeping fallow land from being tied up, in perpetuity, by individuals who not only did not make use of the land, but whose relationship with the land had become so tenuous that they’d failed to even object to its use by an uninvited party for an entire seven-year vesting period. That is to say, adverse possession is a traditional, common law incentive that works to encourage individuals to make use of abandoned property. It is a doctrine that values the sweat equity of those who would work the land more than it values the paper titles of those who would let it lie fallow. And it is a device for preventing the perpetual entrenchment of nonproductive, landed wealth. Put simply by Justice O.W. Holmes:
Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example.
That said, an adverse possessor has always assumed the risk that his bluff would be called before the vesting period had run. But once such time had expired without an objection by the title-holder of record, the adverse possessor could expect to have a solid legal claim to the property. The Metropolitan Transit Authority, as its role is described in the NYT story, is exactly the sort of owner against whom adverse possession ought to work. The MTA, and its predecessors in title, have been absentee holders that have not exercised any incidents of ownership over the land at issue since, apparently, 1924. In the mean time, the parcel’s immediate neighbors have made productive use of the abandoned property. During this time, the neighbors’ use has never elicited any objection from the MTA or its predecessors in title.
Under Senator Little’s amendment to New York’s adverse possession statute, it appears that the MTA could maintain a live claim to the land, against the neighbors, in spite of its nearly nine decades of neglecting the property. Simply stated, this is not right; the common law approach is.
A Google satellite map of the block at issue (East 18th Street between Avenues U and V) is here: