In a case of first impression in the Second Department involving the law of adverse possession, the Appellate Division has ruled that pursuant to the amendment to Real Property Actions and Proceedings Law §543, de minimus non-structural encroachments are, as a matter of law, deemed permissive and non-adverse and cannot support a claim for adverse possession.
In Hartman v. Goldman, where Adam Leitman Bailey, P.C. successfully represented the Goldmans before the Supreme Court and the Appellate Division, the Plaintiffs, adjacent property owners, claimed that they were entitled to adversely possess a strip of land which was on the Goldmans’ property. Plaintiffs claimed that they relied on a survey obtained in 1987 when they bought their property and for more than twenty years they planted new foliage and shrubbery, landscaped the strip, mowed the lawn, and installed lights thereon. Although they later found that the survey was incorrect, they nonetheless maintained that they satisfied the elements necessary to obtain the strip by adverse possession.
The Appellate Division, however, rejected the Plaintiffs’ claims. It explained that while prior to the 2008 amendment to RPAPL 543 “the existence of the kinds of non-structural encroachments and maintenance listed in RPAPL 543 could be considered in determining whether the plaintiff had shown that he or she usually cultivated, improved, or substantially enclosed the land…”, under the “plain terms” of the amended statute, “plaintiffs’ planting of foliage and shrubbery, and landscaping and lawn maintenance are de minimis and deemed permissive and non-adverse.” The court moreover found that RPAPL 543 also applied to the driveway lights. As a result, plaintiffs’ claims alleging that they obtained the disputed strip by adverse possession were dismissed.
Adam Leitman Bailey argued the case before the State Supreme Court and Jeffrey R. Metz argued the Appeal in front of the Appellate Division. John M. Desiderio drafted a substantial portion of the briefs.