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Friday 3rd of August 2012

ADVERSE POSSESSION
Adverse Possession Found Established by Beachfront Owner Who Built on Property Both He and His Neighbors Thought Was His

Beachfront property in Babylon on Long Island contained the parcels at issue here, owned by the town but leased out long term to the parties involved in this dispute.  The plaintiff in this declaratory action is the estate of P, one of the lessees. 
 
In the 1960s jetties were built to combat erosion.  On what he thought was his own parcel, P then built a boardwalk and dock.  Turns out that he was actually building astride the dividing line between his parcel and G’s, but even G thought it was just P’s.
 
Based on longstanding friendship and with no one ever contesting P’s ownership – or, to coin a phrase for this case, leaseship – P let G and other neighbors use the dock and boardwalk for years, more years than enough to satisfy the 10-year period applicable to adverse possession. 
 
Potential trouble started in 1984, when G had her parcel surveyed and only then learned that P’s structure had encroached five feet onto hers.  She showed the survey to P and, she deposed, they both “had a good laugh about it”.  She let P continue to use the property just as before.  The actual trouble arrived only after G sold her parcel to Ds (defendants here), who then advised P that he could no longer use the portion of the structure that they deemed theirs.  Downright unneighborly!  It produced this declaratory action by P, Estate of Becker v. Murtagh, 19 N.Y.3d 75, 945 N.Y.S.2d 196 (April 3, 2012), and P wins it.
 
Turns out that G’s post-survey kindness about letting P continue to use the property in the same way as before was, however generous, no real favor to P, because – under the Court’s holding – by 1984 P’s right had ripened into outright ownership (“leaseship”) through adverse possession. 
 
In an opinion by Judge Jones, the Court reviews in depth the elements needed for adverse possession and finds them all met here in that the occupation was (1) hostile, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period.
 
The Court finds only elements (1) (hostility) and (4) (exclusivity) in dispute here and resolves both in P’s favor.
Hostility need not involve enmity, the Court shows, highlighting the fact that while P allowed some friends and neighbors to use the dock and boardwalk, “he did not grant such access to the general public”.  In present context that establishes both adequate “hostility” and “exclusivity”. 
 
Wouldn’t it be an amusing irony if P were now to bar D from using even that part of the dock that originally belonged to D’s predecessor?
 
New York State Bar Association Publication, July 24, 2012.  Editor:  DAVID D. SIEGEL