Permissive Encroachments Under Post-2008 Adverse Possession Law
Adam Leitman Bailey and John Desiderio discuss how New York Courts are interpreting the way in which RPAPL §543 (Adverse possession; how affected by acts across a boundary line), enacted in 2008 as a new addition to RPAPL Article 5 (Adverse Possession), has changed the law of adverse possession from what it was pre-2008.
In 2008, the New York State Legislature enacted sweeping changes to Article 5 of the Real Property Actions and Proceedings Law (RPAPL) which governs the circumstances under which title to real property may be acquired by adverse possession. We have fully discussed the broad historic changes to the law in previous articles. See Bailey and Desiderio, “Adverse Possession Changes Make Result Less Certain,” NYLJ Feb. 11, 2009, “Adverse Possession After the 2008 RPAPL Amendments” NYLJ Oct. 13, 2010, “Adverse Possession in a Post-‘Walling’ World,” NYLJ 10/12/2011, and “Application of the Adverse Possession Amendments,” NYLJ 6/10/2015.
This article will focus on how New York Courts are interpreting the way in which RPAPL §543 (Adverse possession; how affected by acts across a boundary line), enacted in 2008 as a new addition to RPAPL Article 5 (Adverse Possession), has changed the law of adverse possession from what it was pre-2008.
Adverse Possession Basics
Adverse possession occurs, under RPAPL §501(1), when the “adverse possessor,” a person or entity who “occupies real property of another person or entity with or without knowledge of the other’s superior ownership rights, in a manner that would give the owner a cause of action for ejectment.”
The adverse possessor automatically gains vested title to the property, upon expiration of the statute of limitations, where the adverse possessor “was seized or possessed of the premises,” for a period of 10 years, as prescribed by CPLR §212(a), and “provided that the occupancy…has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.” RPAPL §501(2).
Adverse Possession and de minimis Encroachments
RPAPL §543(1) provides that:
Notwithstanding any other provision of this article, the existence of de minimis non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.
In addition, RPAPL §543(2) provides that:
Notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner’s property shall be deemed permissive and non-adverse. (Emphasis added)
In contrast to the new “de minimis” and “permissive” statutory language, such non-structural encroachments as fences, hedges, shrubbery, sheds and non-structural walls, and acts of lawn mowing or similar maintenance actions, over a disputed parcel of land, previously could have been considered as evidence tending to show such use and occupation of the land by the intruder “as owners are accustomed to possess and improve their estates,…, [which] unless rebutted by other evidence, will establish the fact of a claim of title. “ Barnes v. Light, 116 NY 34, 39 (1889), cited in Monnot v. Murphy, 207 NY 240 (1913), and, therefore, adverse to the interests of the record owner.
That this was clearly the “law” was confirmed, by the Court of Appeals, in Walling v. Prysbylo, 7 NY3d 228 (2006), the decision which spurred the Legislature to enact the 2008 amendments.
On the facts in Walling, the court held that acts of mowing, grading, raking, planting, and watering the grassy area in dispute, without objection by the record owner of the parcel, for the requisite prescription period, had established adverse possession.
The term “de minimis” is not defined in §543. Therefore, New York Appellate Division courts, over the past 16 years, have been called upon to provide more definite meaning to this new statutory language as applied to a variety of circumstances.
‘Hartman v. Goldman’
The Second Department, in Hartman v. Goldman, 84 AD3d 734, 924 NYS2d 97 (2d Dept. 2011), was the first New York Appellate decision to construe RPAPL §543 of the 2008 amendments where the parties agreed that RPAPL §543 applied to the facts of the case. Compare Sawyer v. Prusky, 71 AD3d 1325, 896 NYS2d 536 (3d Dept. 2010)(Held: the 2008 RPAPL §543 amendment “unambiguously applies to all adverse possession claims, i.e., ‘[n]otwithstanding any other provision of this article.’ [emphasis added]”).
In Hartman, plaintiffs, residential property owners, brought an action seeking a declaratory judgment that they had acquired title by adverse possession to a parcel of defendants’ real property bordering plaintiffs’ driveway. Plaintiffs claimed they had acquired title by installation of driveway lights, the planting of foliage and shrubbery, landscaping and lawn maintenance of the parcel, and by installation of a drainage system beneath the land.
The Second Department affirmed Supreme Court’s dismissal of plaintiff’s complaint based upon plaintiffs’ installation of driveway lights, planting of foliage and shrubbery, and landscaping and lawn maintenance, and Supreme Court’s holding that “such de minimis encroachments are deemed permissive and non-adverse pursuant to RPAPL 543.” The Second Department explained:
With respect to an adverse possession claim not founded upon a written instrument or judgment, land “is deemed to have been possessed and occupied” only “where there have been acts sufficiently open to put a reasonably diligent owner on notice,” or “[w]here it has been protected by a substantial enclosure” (RPAPL 522)
Noting the change in the law rendered by RPAPL §543, the Court explained that:
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, and the type of cultivation or improvement sufficient to satisfy the statute varied with the character, condition, location and potential uses of the property (citations omitted), [but] [u]nder the plain terms of RPAPL 543 as amended, the plaintiffs’ plantings of foliage and shrubbery, and landscaping and lawn maintenance are de minimis and deemed permissive and non-adverse. (Emphasis added)
The Hartman Court seemed to construe RPAPL §543 literally, explaining that “the plaintiffs’ plantings of foliage and shrubbery, and landscaping and lawn maintenance are de minimis and deemed permissive and non-adverse,” citing Sawyer, supra, and that “the driveway lights installed by the plaintiffs, which are approximately four feet high and six inches in diameter, are also governed by RPAPL 543, which applies to all de minimis, non-structural encroachments ‘including but not limited to,’ those expressly listed in the statute.” (Emphasis added)
Although the Hartman court seemed to construe RPAPL §543 literally, on the one hand—deciding the “de minimis” and “permissive and non-adverse” nature of plaintiffs’ “plantings,” “landscaping,” and lawn maintenance,” as evidence of the listed statutory categories, without qualification,—on the other hand, the court, with added analysis, noted the height and width of the driveway lights as evidence of their “permissive and non-adverse” nature, to qualify as “de minimis” non-structural encroachments.
Moreover, the Hartman court included “lawn maintenance,” an example of a non-structural encroachment listed under RPAPL §543(2)(in which “de minimis” is omitted from the statutory language), together with its analysis of the de minimis nature of those listed categories to which RPAPL §543(1)(which does include “de minimis”) does apply.
Overall, the Hartman court’s construction of RPAPL §543 did not clarify the unstated intentions of the Legislative language, but, instead, to the contrary, amplified the uncertainty.
The further development of interpreting the full scope of RPAPL §543 has been left to more recent cases.
‘Wright v. Sokoloff’
Although all “de minimis” non-structural encroachments specified by RPAPL §531(1) are deemed to be “permissive and non-adverse,” the Second Department, in Wright v. Sokoloff, 110 AD3d 989, 983 NYS2d 743 (2d Dept. 2013), limited the literal meaning of the statutory language by determining its application in relation to a qualifying factor which is entirely absent from the statute, i.e., “the circumstances of [the] case.”
In other words, the Second Department concluded that the Legislature’s listing, of specific examples of “de minimis” encroachments, was not necessarily intended to include, within the listed example categories, encroachments which could NOT be deemed, objectively, “de minimis” in the given circumstances of all cases of adverse possession that could possibly be adjudicated.
The court construed RPAPL §531(1), to mean that “the list contains examples of ‘non-structural encroachments’ which could still be adverse if they are not de minimis” (Emphasis added).
The court explained that “This reading gives effect to the words ‘de [minimis],’ because interpreting RPAPL §531(1) to mean that “the list of examples contained therein are examples of ‘de [minimis] non-structural encroachments,’…. would render [the words ‘de minimis’] superfluous” (Emphasis added).
The court said “[i]t is a cardinal principle to be observed in construing legislation that…whenever practicable, effect must be given to all the language employed.” In the court’s view, a contrary reading would deem all forms and varieties of each RPAPL 543(1) “example” as de minimis, whatever their size or impact.
The Second Department therefore concluded that the Legislature could not have intended “de minimis” to mandate an interpretation which the court clearly considered would be an unreasonable construction of the statute.
Accordingly, in Sokoloff, where the encroachment was an eight-foot-wide mature hedge, the court held that the plaintiff had “raised a triable issue of fact as to whether, under the circumstances of this case, the eight-foot encroachment was de minimis within the meaning of [the statute].” (Emphasis added)
‘Hongwei Guan v. EZC Carolinas’
In Hongwei Guan v. EZC Carolinas, LLC, 222 AD3d 1086, 201 NYS3d 54 (3d Dept. 2023), the property dispute involved a shed sitting between two residences on adjoining parcels of land. Plaintiff had used the shed, prior to the defendant’s installation of a fence enclosing the shed. Plaintiff sued claiming adverse possession of the parcel of land upon which the shed was located.
The Third Department added a further gloss to the meaning of “de minimis.” The court held that, because the shed was admittedly a “moveable shed,” the “plaintiffs [did not] establish, as a matter of law, that the shed was not a de minimis encroachment.” (Emphasis added)
The court explained:
Although plaintiffs contend that the shed is approximately 10 feet by 20 feet and extends roughly 23 feet into defendant’s parcel, it is also described as a “moveable shed” and the record includes a request to relocate the shed or pay rent if it is left in its current location. Based on the foregoing, Supreme Court properly denied plaintiff’s motion for summary judgment.
‘N47 Associates v. Jemsco Realty’
The First Department has also similarly construed RPAPL 543(1), in Matter of N47 Associates LLC v. Jemsco Realty LLC, 218 AD3d 210, 194 NYS3d 210 (1st Dept. 2023). In this case, the two parties, Jemsco and N47, owned neighboring buildings on adjoining lots, respectively at 29 West and 27 West 47th Street.
When N47’s building was built, its west wall was located 18 inches short of the property line between 29 and 27 West 47th Street. Jemsco’s building was built flush with the property line, thus leaving an 18-inch gap (the “Strip”) between the two buildings.
The dispute arose when N47 decided to demolish its building and construct a new 31-story building on its property, and N47 then sought an access agreement from Jemsco, to document the existing physical conditions and install protections to the Jemsco building.
The parties could not agree on license terms, and N47 commenced an RPAPL §881 proceeding seeking a ruling that N47 could build the new building to the edge of its west property line, including the Strip.
Jemsco then commenced a declaratory judgment action claiming adverse possession or a prescriptive easement over the Strip stemming from both aerial and grounded physical encroachments by Jemsco’s building over and into the Strip. The two cases were consolidated.
Jemsco had a brick extension wall built on the Strip, a cinderblock protrusion which extended into the Strip, a series of wooden spars and iron grates and 22 air conditioners which hung over the Strip, a six-inch wide concrete window ledge running the entire length of the Strip, and an alleged foundational wall as part of a substantial enclosure of the Strip.
Both parties moved for summary judgment, Jemsco for a judgment upholding its adverse possession or easement claims, and N47 for a judgment rejecting those claims. The First Department affirmed Supreme Court’s denial of Jemsco’s summary judgment motion, because Jemsco could not establish that its predecessor owner, who sold the building to Jemsco in 2007, had “intended to, or actually did, convey any portion of the Strip,” upon transferring the deed to Jemsco.
The First Department also affirmed the dismissal of Jemsco’s adverse possession and easement claims based on the existing aerial encroachments, holding that, as a matter of law, they “could [not] provide sufficient basis for supporting or sustaining Jemsco’s claims.” (The First Department’s conclusion in this regard is questionable, citing as a basis for its ruling 1380 Madison Avenue LLC v. 17 East Owners Corp. 12 AD3d 156, 783 NYS2d 473 (1st Dept. 2004)(which in turn relied upon Joseph v. Whitcomb, 279 AD2d 122 [1st Dept. 2001], the holding of which on “claim of right” was discredited by the ruling of the Court of Appeals in Walling, supra. See discussion in Bailey and Desiderio, “Veto Confirmed Existing Law on ‘Claim of Right’”, NYLJ Sep. 12, 2007).
The First Department further held that the Supreme Court had “properly found material issues of fact that precluded a grant of summary judgment against Jemsco on its adverse possession claims…or its prescriptive easement claim based on factual allegations concerning certain grounded physical intrusions.”
The Supreme Court had “found that the evidence established that the purported ‘foundational wall’ never existed as part of a substantial enclosure of the strip,” and had “appropriately granted summary judgment dismissing so much of Jemsco’s adverse possession and prescriptive easement claims as were predicated on the existence of the foundation wall.”
Nevertheless, the First Department held that Supreme Court had “properly rejected N47’s argument that this part of Jemsco’s claim should be dismissed because the cinderblock and extension walls are nonstructural encroachments that are permissive and non-hostile, as a matter of law, under the applicable post-2008 RPAPL 543.” The First Department rejected N47’s interpretation of RPAPL §543 and affirmed Supreme Court’s denial of N47’s argument, stating:
Even if the evidence shows that the cinderblock and extension walls are nonstructural, under RPAPL 543, nonstructural encroachments, including nonstructural walls, are deemed permissive and nonadverse if they are de minimis in nature [citing Wright v. Sokoloff, supra]. Here, issues of fact exist as to whether these encroachments are de minimis.” (Emphasis added)
Conclusion
The above discussion seemingly leads to the conclusion that, the more things change, the more they remain the same. While the statutory language of RPAPL §543, as added to RPAPL Article 5 in 2008, was apparently intended to make certain what acts across boundary lines should be considered either “de minimis” and/or “permissive and non-adverse,” the above cases suggest that, as throughout the long history of common law adjudication, the necessary interpretation of statutory language often leads courts to impose glosses on the words that enhance or elaborate their literal meaning.
After all, is there truly any difference between (a) saying, in pre-2008 analysis, that “the type of cultivation or improvement sufficient to satisfy the statute [varies]with the character, condition, location and potential uses of the property,” Hartman v. Goldman, supra, and (b) saying in post-2008 analysis (i) “whether, under the circumstances of this case, the eight-foot encroachment was de minimis within the meaning of [the statute],” Wright v. Sokoloff, supra, or (ii) because the encroachment was a “moveable shed,” the “plaintiffs [did not] establish, as a matter of law, that the shed was not a de minimis encroachment,” Hongwei Guan v. EZC Carolinas, LLC, supra, or (iii) “Here, issues of fact exist as to whether these encroachments are de minimis,” Matter of N47 Associates LLC v. Jemsco Realty LLC, supra.
It remains to be seen whether the courts will eventually develop a more trenchant construction of RPAPL §543 that will make its application more clear and serve the Legislature’s purpose in enacting the 2008 amendments.
Adam Leitman Bailey is the founding partner of Adam Leitman Bailey, P.C., and co-editor to the 2024 Revision of Real Estate Titles: The Practice of Law in New York (Real Estate Titles, 4th Edition), Chapter 17 (Adverse Possession). John M. Desiderio is a partner and chair of the firm’s real estate litigation group. Jacklyn DiRienzo a litigation extern and student at the Hofstra University Maurice A. Deane School of Law, assisted in the preparation of this article. Disclosure: Adam Leitman Bailey P.C. represented the prevailing party defendant in ‘Hartman v. Goldman,’ discussed in this article.