What a Difference a Foot Makes: Encroachments, Easements, and Adverse Possession

NYC-based boutique law firm Pardalis & Nohavicka brings the latest legal updates from the world of real estate to PropertyShark. Pardalis & Nohavicka handles an eclectic array of matters, representing individuals and business owners in civil litigation, criminal cases and business transactions, currently litigating and representing clients throughout the United States and around the world.

While you might never think that one foot in length would make a difference, in the world of real estate transactions it often can. The laws concerning property lines are complex in any jurisdiction, and this is all the more true in the state and city of New York, where the legal consequences of encroachments, easements, and adverse possession can significantly change the value and the risks of a property.

Q: What is an encroachment?

A: An encroachment is defined as, “the act of building a structure which is in whole or in part on a neighbor’s property,” and a good example is when the edge of a neighbor’s shed overlaps onto your lot. Generally, buyers are not concerned with where a neighbor’s fence or garage may lay, but certain measures must be taken to protect the property owner, or new buyer, from losing ownership of their property through adverse possession.

Q: What is adverse possession, and what are the consequences?

A:  In New York, if a neighbor encroaches on your property knowingly and without permission for a minimum of ten years, the neighbor can claim ownership of that encroached property (NY RP ACT & PRO § 501). A possessor must have actual, open and notorious, hostile, exclusive, and continuous control for the statutory period to claim right of title (Brand v. Prince, 35 N.Y.2d 634).  In 2008, New York amended its laws to heighten the requirement for hostility by requiring that possessor have a “reasonable basis for the belief that the property belongs to” them (Children’s Magical Garden, Inc. v. Norfolk Street Development, 164 A.D.3d 73). This is different from the hostility requirement that allows a possessor who knows the property is not theirs to acquire title to the property.

Q: How does a buyer protect themselves from potential encroachments?

A:  A standard residential contract in New York includes language conveying the property subject to any encroachments ( Section 9(c) of the new York City Bar standard residential contract). To protect our clients, we include language in our riders to the contract limiting such encroachments to one foot in length. In New York, small or “de minimis” encroachment such as shrubbery or a fence are permitted and do not create a claim for adverse possession.  Additionally, a purchaser should always a obtain a survey that will identify the actual boundaries of the property and depict any encroachments within the boundary lines. In circumstances where the encroachments exceed one foot, generally title companies would deem the title unmarketable, making the contract of sale void.

Q: How does a property owner remedy an encroachment to prevent a claim for adverse possession?

A: There are several options to terminate an encroachment and this issue can even be resolved outside of court. You can have a friendly discussion with the possessor to see if they are willing to move the structure off of your property or you can make an offer to sell the encroached property. A possessor may be inclined to accept the offer if the encroached portion of the property is large. Another options is to make a claim for quiet title, a proceeding brought in court to clear any ambiguity concerning a title.

Q: What is an Easement?

A: An easement “is an interest in land … which confers rights upon the holder thereof … to lawful use out of or over estate of another” (Cupertino v. Ward, 100 A.D.2d 565). An easement can be held by a private person, or even the city. Good examples of how easements are used include telephone poles, shared driveways, and walkways through private property to the beach. There are many types of easements and they are each terminated in different ways. Similar to an encroachment, a purchaser will take a property subject to easements. Yet, unlike encroachments, an easement on a property, especially one held by the city, are usually not removable.

About 

Expert insight and analysis was provided by Pardalis & Nohavicka, LLP and Real Estate and Corporate Transactions Attorney Nataly Goldstein. Nataly is a graduate of Cardozo School of Law, where she served as President of the Real Estate Law Association.  She is experienced in both residential and commercial real estate transactions, as well as representing large banks, such as Wells Fargo and Citibank.