A Message to New York State Landowners
Aaron Robinson
PO Box 271
Barryville, New York 12719
E-mail: arob -at- ptd -dot- net
Assemblywoman Teresa R. Sayward November 12, 2006
LOB 940
Albany, NY 12248
Dear Assemblywoman Sayward,
The verdict is in and once again the Appellate Division of the 3rd Department has taken precious property from a taxpaying owner of record and awarded it to a land marauder by adverse possession. My case is in many ways unique and further weakens the property rights of landowners across the State. The Appellate Division’s new exceptions to Statutes RPAPL 521 and 522 that govern what land can be awarded by adverse possession when there is no written document supporting the claim is opening the floodgates to loss and litigation. Until now these Statutes were unconditional in that only land actually occupied and no others can be claimed. Now this court has created a new variant contradicting the safeguards provided in these Statutes. If a claimant cannot occupy all the claimed property because of the physical character or nature of the property, the claimant is still entitled to it.
I realize that these cases involve complicated facts and common law left up for an interpretation ‘de jour’. But I will try to summarize the highlights of my case as they lower the bar for almost every required element in an adverse possession claim and negate any protection of property rights associated with the routine acts normally conducted by land transaction professionals. Now deemed meaningless by the courts in an adverse possession claim are title abstracting to ascertain clear title, having a survey and map prepared by a licensed surveyor, obtaining title insurance, recording of the deed with the Office of the County Clerk and the uninterrupted payment of real property taxes levied on the land being claimed :
The claim against my land was initiated by my brother 5 years after I purchased it in October 1997 from the record owner of 67 years. The court awarded the land based on a vesting period that ended 3 months prior to my buying the property. Nothing in the public record could have put me, the seller or my attorney handling the transaction on notice that this land had a claim against it. In fact what was in the public record was a 1987 Judgment by the Sullivan County Supreme Court that specifically declared that the claimant did not have interest in this same property from a prior attempt to get it by adverse possession. The claimant’s use of a small portion of the land claimed after my purchase was permissive (documented by my brother giving me a certificate of insurance naming me as landowner) and based on a then cooperative familial relationship. His use of the property was discontinued one year later by the sale of his business. The court chose a period before my ownership as the vesting period. How does one protect himself against unrecorded and un-adjudicated adverse possession claims that lay silent until a claimant decides when it is opportune to take action? Claims that relate to a time period prior to one’s taking title are so difficult to defend against. In my case the late principle of the owner familiar with the property died in 1993 after a being ill with cancer. Awards based on vesting periods prior to one’s ownership are an abuse by the court and nothing more than a form of stealth land theft from unsuspecting victims. By this retroactive award, did the court ‘create’ a fraudulent transaction by the seller. Do I now have a legal claim against the seller on the basis that although he had absolutely no way of knowing, he had no right to sell me property that he did not own by virtue of this court’s retroactive award 5 years after the sale? Does the State Legislature have the same power to enact laws that take effect 5 years retroactive to its being signed into law as done by this court’s ruling against me? Is there any difference?
The required element of continuous possession is now defined to be seasonal regardless of whether the claimant completely abandons the property by discontinuing his use and removing everything on it. Based on this decision, a claimant can use a property for 3 months on weekends, adjoining 2 continuous months and then be entirely undetectable for the other seven continuous months and still meet the requirement of continuous use. This definition precludes the true owner’s ability to detect the ‘open and notorious’ use by the party encroaching and take action to eject him during the non use period. A landowner who happens to inspect his land on a day during the period of abandonment has no cause to take action and cannot later demonstrate to the court that he maintained dominion over his property. This standard as it was applied by the court in my case allowed the claimant to argue that he was never ejected off the property by the owner during the vesting period. Did the court consider that it was not possible?
The level of proof for an adverse possession claim is required by common law to be by clear and convincing evidence. The court stated that the claimant performed certain activities on the property for a 5 month period and had installed a road and 2 permanent campsites. Other than claimant’s own testimony no where in the record can it be shown if or where actual use took place or the location of the alleged road or campsites during the 10 year statutory period. At trial the claimant marked up my survey map to use as proof where his activities took place and his perceived location of a road and campsite. But as the record undoubtedly showed, on September 13, 1989 a NYS Board of Health inspector filed a written report that he was unable to locate the campsites of Claimant’s campground. In fact most of what the court recited were controverted by the claimants own witnesses. As clearly and systematically pointed out in our brief, the testimony and the documentary proof of the trial record cannot provide any evidence that the asserted activities and improvements ever took place by the claimant on the disputed parcel. Can clear and convincing evidence be established by unilateral proclamation by the court and not by an accountable analysis of the facts? It appears that it very well can.
The definition of the required element of ‘Exclusive’ now means ‘Shared’. Despite the documented continued use of this property by myself with permission of the owner, my family, neighbor John Muldowney and the Traver brothers as well as many others throughout the court’s 10 year vesting period during periods that were concurrent as well as before or after the use by the claimant, the court chose to consider intensity of seasonal use by the claimant over exclusivity. Intensity of use is not an element of adverse possession. If the court does not consider that the shared use by the owner or by others as interfering with the claimant’s ability to satisfy the element of exclusive occupation, then why doesn’t the court also apply the same reasoning in the reverse to the benefit of the true owner? That is the use by the owner or by others when shared with the adverse possessor is exclusive to owner and therefore must negate a claim?
The court determined that Statutes RPAPL 521 and 522 that limit what land can be awarded by adverse possession is now subjective and determined by the ‘nature of the land’ and ‘circumstances’ of the use. The ensuing is a copy of these statutes.
Section 521 - Adverse possession under claim of title not written. Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely.
S 522 - Essentials of adverse possession under claim of title not written. For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:
1. Where it has been usually cultivated or improved.
2. Where it has been protected by a substantial enclosure.
The court has now placed conditions on what it constitutes as ‘no others’ transforming its meaning to ‘no others with subjective exceptions’. Under these new rules, if a portion of a claimed property cannot be occupied by virtue of its physical nature, such as in this case ‘ its location on the riverbank subject to natural fluctuation’, the claimant is entitled to his entire land claim regardless of whether occupation was actual or not. Applying this new caveat to the statutes eliminates the need of the claimant to prove by clear and convincing evidence the precise area that was occupied while satisfying the common law elements for the statutory 10 year vesting period. It negates the mandate of the statutes and the court’s need to verify the facts of occupation. In my case the court decided that the changing shoreline of the river was basis to ignore the statutes dictate that ‘you only get what you occupy’ and therefore make unnecessary an analysis of the claimant’s proof of cultivation, improvement or enclosure. One would think that to make such a decision an examination of the portion of land effected by river’s flow would be compared to the entire claimed parcel. The court did not undertake any analysis of the area between the high and low watermark levels or the area unaffected by the river and suitable for cultivation, improvement or enclosure. In fact, record is completely devoid of any specifics that would satisfy the unadulterated statute.
The claimant admitted that he left an area to grow wild to provide a visual barrier of his activities from the public. The court included this untouched area in their award. How did the river’s changing shoreline influence the claimant’s location to cut brush or leave it uncut for a visual barrier? In addition the court included a steep 12 foot high by 12 foot wide dyke area running the length of the awarded parcel that could not be utilized for any purpose advanced by the claimant (It was actually used by neighbor John Muldowney as part of his garbage dump). How did the river’s fluctuations negate the proof of occupation for this area?
As with retroactive vesting periods, the courts new amendment to the statutes announced in my decision, precluded me from effectively defending by not knowing the criteria of the new standard. USGS data readily available from their website when applied to the topography of the awarded parcel shows that less than .09 acres encompass the area between the low and high water mark on the disputed property. Therefore proof of occupation by the claimant to the standard of the statutes should have been qualified by the court on the remaining .53 acres.
The result was a free for all land grab of .62 acres complete with arbitrary boundaries that correspond to a quit claim deed created by the claimant in December 2002, and not his occupation as an adverse possessor. Almost all of the waterfront land within the Upper Delaware River Wild and Scenic National Park is privately owned and maintained in its wild state. Federal, State and Local laws regulate its change and public policy wants these lands to be kept it in a natural condition for Park visitors to enjoy. The modification of these statutes by the court in this decision makes theses types of lands easy targets for adverse possession claims. It goes against and penalizes the owner that is deliberately keeping his land in the preferred indigenous condition. It is hard to comprehend that the statutes are fulfilling the intention of the New York State legislature when they were enacted in1962.
There is much more details to this absurd outcome. I would be more than happy to review these with you. One thing is for sure, in light of the recent ‘Przybylo’ decision where the Court of Appeals determined that a claimant’s knowledge that another party is the true owner will not defeat a claim by adverse possession, in conjunction with the implications of the court’s reasoning in my case, at serious risk is any absentee landowner of vacant land, or owners of large land parcels such as managed forestlands where it is difficult or impossible to continuously patrol each square foot of land for encroachment. Ironically in rare cases where the State can be sued for adverse possession the law doubles the statutory vesting period to 20 years in consideration of the overwhelming task of patrolling its land. What justification is there to treat the State differently than its taxpaying record owners of real estate?
Adverse Possession was intended to quiet title of disputed lands. In NYS it now succeeds to facilitate the exact opposite by providing an opportunity for an aggressive trespasser to disturb a good title every 10 years and then acquire the land without paying for it. The cost to defend ones land against an adverse possession case is prohibitive to many and has and will create land ownership by default. Prior to initiating my defense I consulted 5 independent seasoned attorneys familiar with adverse possession to determine my likelihood of overcoming this claim. Every one determined that I overwhelmingly should be successful. I have spent over $100,000 to defend a portion of my land worth $100,000. And I lost to a guy that never was even an adjoining landowner to my waterfront property until buying the house directly above it in December of 2002. This was not a case of a disputed boundary line. This was a case that used the court system as an agent to steal. If adverse possession becomes an alternative method to divest land from unsuspecting rightful land owners, to the surprise of the banks, mortgage companies, and realtors land ownership in New York will be in chaos. It is up to the legislators of the State to immediately remedy this abuse by unscrupulous claimants using a predisposed court system to steal land. Legislation must be enacted to protect the real estate assets of its citizens and preserve the tax base of the State of New York.
We assume that the Judicial arm of our Government is the most accountable and trustworthy arm. If one takes the time to review this case it will find that this court arrived at its decision by grossly overlooking the facts and the law. And when necessary it created new law. If anything is ‘clear and convincing’ the court system abrogated its responsibility serve unbiased justice. The worst part of this injustice is that I have little or no recourse to have it corrected. Please advise me if you are aware of a legal option that I can pursue.
I would be more than willing to assist in any way to expedite a reform. Perhaps my 4 years of studying the subject and reading volumes of case law could be put to a productive use.
Sincerely,
Aaron Robinson
