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RECENT CHANGES TO THE ADVERSE POSSESSION STATUTES Print E-mail

In July, 2008, New York State Governor Patterson signed into law S.7915-C/A.11574-A, changing the statutory requirements for adverse possession.  The act takes effect immediately and applies to all claims of adverse possession filed subsequently thereto.
 
According to sponsor Senator Little’s memorandum, this bill reflects the policy that: "Adverse possession should be used to settle good faith disputes over who owns land.  It should not be a doctrine which can be used offensively to deprive a landowner of their real property.  That only encourages mischief between neighbors and even between families.  No good can come of it.  This is an incentive which must be curtailed."

The amended law places several enhanced and more stringent requirements upon adverse possession claims.  One of the most significant changes is the addition of RPAPL § 543, which sets forth that “the existence of de minimus 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,” and that “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.”

Also, rather than a “Claim of Title,” an adverse possessor must have a “Claim of Right,” which is defined in RPAPL section 501 as “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be.”
 
The “usually cultivated or improved” standard in RPAPL sections 512 and 522 has been changed to require “acts sufficiently open to put a reasonably diligent owner on notice.”  The amended statute does not define “sufficiently open” acts, so the courts may fall back on the old “cultivated or improved” standard.  The “substantial enclosure” requirement of those sections has been limited by RPAPL section 543 described above.
 
The text of the Bill is set forth below for practitioners to examine and draw their own conclusions from.  Text in ALL CAPS is new; text in {brackets} is old law to be omitted.

1.  Section 501 of the real property actions and proceedings law, as added by chapter 312 of the laws of 1962, is amended to read as follows:

S 501.  {Action after entry.  An entry upon real property is not sufficient or valid as a claim unless an action is commenced thereupon within one year after the making thereof and within ten years after the time when the right to make it descended or accrued.} ADVERSE POSSESSION; DEFINED.  FOR THE PURPOSES OF THIS ARTICLE:

1.  ADVERSE POSSESSOR.  A PERSON OR ENTITY IS AN "ADVERSE POSSESSOR" OF REAL PROPERTY WHEN THE PERSON OR ENTITY 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.

2.  ACQUISITION OF TITLE.  AN ADVERSE POSSESSOR GAINS TITLE TO THE OCCUPIED REAL PROPERTY UPON THE EXPIRATION OF THE STATUTE OF LIMITATIONS FOR AN ACTION TO RECOVER REAL PROPERTY PURSUANT TO SUBDIVISION (A) OF SECTION TWO HUNDRED TWELVE OF THE CIVIL PRACTICE LAW AND RULES, PROVIDED THAT THE OCCUPANCY, AS DESCRIBED IN SECTIONS FIVE HUNDRED TWELVE AND FIVE HUNDRED TWENTY-TWO OF THIS ARTICLE, HAS BEEN ADVERSE, UNDER CLAIM OF RIGHT, OPEN AND NOTORIOUS, CONTINUOUS, EXCLUSIVE, AND ACTUAL.

3.  CLAIM OF RIGHT.  A CLAIM OF RIGHT MEANS A REASONABLE BASIS FOR THE BELIEF THAT THE PROPERTY BELONGS TO THE ADVERSE POSSESSOR OR PROPERTY OWNER, AS THE CASE MAY BE.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, CLAIM OF RIGHT SHALL NOT BE REQUIRED IF THE OWNER OR OWNERS OF THE REAL PROPERTY THROUGHOUT THE STATUTORY PERIOD CANNOT BE ASCERTAINED IN THE RECORDS OF THE COUNTY CLERK, OR THE REGISTER OF THE COUNTY, OF THE COUNTY WHERE SUCH REAL PROPERTY IS SITUATED, AND LOCATED BY REASONABLE MEANS.

2.  Section 511 of the real property actions and proceedings law, as added by chapter 312 of the laws of 1962, is amended to read as follows:

S 511.  Adverse possession under written instrument or judgment.  Where the occupant or those under whom {he} THE OCCUPANT claims entered into the possession of the premises under claim of {title} RIGHT, exclusive of any other right, founding the claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and there has been a continued occupation and possession of the premises included in the instrument, decree or judgment, or of some part thereof, for ten years, under the same claim, the premises so included are deemed to have been held adversely; except that when they consist of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot.

3.  Section 512 of the real property actions and proceedings law, as added by chapter 312 of the laws of 1962, is amended to read as follows:S 512.  Essentials of adverse possession under written instrument or judgment.  For the purpose of constituting an adverse possession {by a person claiming a title}, founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in {either} ANY of the following cases:

 1.  Where {it has been usually cultivated or improved} THERE HAS BEEN ACTS SUFFICIENTLY OPEN TO PUT A REASONABLY DILIGENT OWNER ON NOTICE.

 2.  Where it has been protected by a substantial {inclosure} ENCLOSURE, EXCEPT AS PROVIDED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED FORTY-THREE OF THIS ARTICLE.

 3.  Where, although not {inclosed} ENCLOSED, it has been used for the supply of fuel or of fencing timber, either for the purposes of husbandry or for the ordinary use of the occupant.  Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared or not {inclosed} ENCLOSED, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length of time as the part improved and cultivated.

4.  Section 521 of the real property actions and proceedings law, as amended by chapter 116 of the laws of 1965, is amended to read as follows:

S 521.  Adverse possession {under claim of title not written} NOT UNDER WRITTEN INSTRUMENT OR JUDGMENT.  Where there has been an actual continued occupation of premises under a claim of {title} RIGHT, 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.
 
5.  Section 522 of the real property actions and proceedings law, as added by chapter 312 of the laws of 1962, is amended to read as follows:

S 522.  Essentials of adverse possession {under claim of title not 52 written} NOT UNDER WRITTEN INSTRUMENT OR JUDGMENT.  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} THERE HAVE BEEN ACTS SUFFICIENTLY OPEN TO PUT A REASONABLY DILIGENT OWNER ON NOTICE.

 2.  Where it has been protected by a substantial {inclosure} ENCLOSURE, EXCEPT AS PROVIDED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED FORTY-THREE OF THIS ARTICLE.

6.  Section 531 of the real property actions and proceedings law, as amended by chapter 375 of the laws of 1975, is amended to read as follows:

S 531.  Adverse possession, how affected by relation of landlord and tenant.  Where the relation of landlord and tenant has existed {between any persons}, the possession of the tenant is deemed the possession of the landlord until the expiration of ten years after the termination of the tenancy; or, where there has been no written lease, until the expiration of ten years after the last payment of rent; notwithstanding that the tenant has acquired another title or has claimed to hold adversely to his landlord.  But this presumption shall cease after the periods prescribed in this section and such tenant may then commence to hold adversely to his landlord.

7.  Section 541 of the real property actions and proceedings law, as amended by chapter 375 of the laws of 1975, is amended to read as follows:

S 541.  Adverse possession, how affected by relation of tenants in common.  Where the relation of tenants in common has existed {between any persons}, the occupancy of one tenant, personally or by his servant or by his tenant, is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises has acquired another title or has claimed to hold adversely to the other.  But this presumption shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, personally or by his servant or by his tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his cotenant.

8.  The real property actions and proceedings law is amended by adding a new section 543 to read as follows:S 543.  ADVERSE POSSESSION; HOW AFFECTED BY ACTS ACROSS A BOUNDARY LINE. 

1.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE EXISTENCE OF DE MINIMUS 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.

2. 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.

9.  This act shall take effect immediately, and shall apply to claims filed on or after such effective date.
 

 
Mixed News for the Not-for-Profit World Print E-mail

Many people devote substantial time to charities in the form of Board and Committee memberships, direct financial support, mail and direct appeals and related time and support, and by providing free or discounted legal services.  Indeed, many know that some of the expenses incurred are deductible, such as mileage, even though, in many cases, the value of the services provided are not themselves deductible.  In 2004, the value of all cash charitable contributions reported to the IRS was over $122 billion dollars.  This counted only cash donations appearing as deductions upon over 130 million returns.  Some public interest tracking agencies report that this accounts for about 25% of actual charitable contributions annually provided in the United States by United States citizens (and others) who file tax returns.  This is because the number reported by the IRS pertains only to cash contributions and ignores many other types of contributions (personal and real property, for example), and because a percentage of deductions are never taken due to the reporter being unaware of a deduction or failing to file a return.  
 
These are big numbers.  So big, in fact, that the IRS and the Congress are making concerted efforts to reduce these numbers by denying deductions for many people.  The odd thing is that this is being largely accomplished by stealth. Nobody is reviewing IRS Regulations published in the CFR, nor statutes that give any clue that they have tax laws attached, and as a result, the public is unaware of this assault.  Soon long gone may be the day that you give $10.00 to the zoo as you pass the penguin exhibit because you see how many tons of food those birds can eat in a year.  Here’s a couple of the hidden gems in recent legislation that will affect charitable donations and their deductibility. 
 
The Pension Protection Act actually carried some tack-ons addressing the tax deductibility of charitable contributions.  Now, all cash donations must be supported by bank records or written confirmation from the charity.  If the amount donated throughout the year exceeds $500.00, new forms and sections of forms need completion.  Single large gifts over $250.00 must be documented by a contemporaneous writing (i.e., receipt).  Donated clothing (and similar thrift donations) must be in good used condition or better to qualify for deductibility (though there is no definition of what this means or how to prove the condition of goods to the satisfaction of the IRS). 
 
The American Jobs Creation Act of 2004 also had some add-ons.  Now, used vehicle donations where a $500.00 or greater deduction is taken is limited to the sale price obtained by the charity when re-sold in an arms length transaction.  In many cases, this is scrap value less transportation costs.   Further, the charity has a tax form to fill out and submit to the donor and the IRS to report the consideration received. 
 
Additionally, the rules for the contribution of appreciated property have changed.  Besides the limitations relating to the donor's adjusted gross income, there are now more rules than ever concerning what is donated, why and for how long it was held, what type of property it is, fractional interest donations, and what the true purpose of the donation was - philanthropy or tax avoidance.  There are new rules for reporting gifts of stock and rules requiring charities to submit reports to prove they do not support terrorism. 

Also, New York State is making a concerted effort to limit property tax exemptions for charities and not-for-profit entities.
 
In short, there are lots of traps for the unwary.  A good recommended starting point for some of these issues is IRS Publication 526.  Fortunately, the IRS does not yet charge for these publications.

 
Real Estate Note Print E-mail
Ethics Opinion 817 will have far reaching impacts for real estate practitioners.  Essentially, Seller concessions and “grossed up” sales prices sometimes resulting from that practice can cause an ethical dilemma as they (i) sometimes violate ethics rules, and (ii) may run afoul of federal legislation.  Please review this decision carefully.
 
Property Tax Note Print E-mail
Some municipalities are considering passing the “Cold War Veteran’s Tax Exemption”.  This is a newer exemption that is just starting to be considered in Tompkins County.  The requirements and rules govern whether any client is eligible, and I encourage everyone to check with their clients to inquire as to whether the exemption is available in their municipalities.  More information can be obtained from ORPS (New York State Office of Real Property Services).
 
Labor and Employment Laws Present Ever-Changing Arenas of Doubt Print E-mail

Here’s a quick look at only some of the changes in law affecting employers and employees in New York State:

  • The Family Medical Leave Act has been amended by the “National Defense Authorization Act for Fiscal Year 2008” to expand the 12 weeks of leave rule to 26 weeks for “any qualifying emergency” for military personnel and their families.  Included are new definitions for “next of kin” and special rules for active duty calls.  While the law has changes, the U. S. Department of labor has yet to issues regulations to implement the law.
  • U. S. Citizenship and Immigration Services issued yet another new form I-9 for 2008 (effective as of December 27, 2007).  What now qualifies as an “Acceptable Document” has substantially changed.  Many employers are unaware of the new form requirements, but that will not prevent penalties from accruing.
  • Labor Law § 206-c was amended to allow an employee to express breast milk at the workplace for up to three years after child birth.
  • Employees are now permitted mandatory leave to donate blood.  The rule applies only as to employers with more than 20 employees and employees that work twenty or more hours per week, and it may be unpaid, but….
  • The New York Human Rights Law has been amended and re-amended to further prohibit employment discrimination for youthful offender adjudications and prior criminal convictions.  This prohibition even applies to applicants with criminal records!  This law seems to provide a remarkable opportunity to advocate for judicial interpretation since it is written in gray ink.
  • The Labor Law has been amended to re-classify employees based upon the level of wages earned, thus in turn regulating how often paychecks must be delivered, what notices an employee is entitled to, direct deposit requirements, and unpaid wage supplements and benefit reimbursements.
  • Prevailing Wage Laws (see e.g., labor Law Article 8) now require prevailing wage employers to provide written notices of all sorts to employees, and a failure to do so hosts all sorts of penalties and compliance problems, even “blacklisting”. 
  • Arbitration and judicial rulings regarding union and union member employee activities at the workplace have changes so significantly in the past 2 years that a practitioner is well advised to pay for a subscription to NLRB cases and interpretations.  Employee email usage, illegally obtained evidence of misconduct, salting, union balloting, and many other areas are quickly changing.
  • New York now required commissioned sales persons to have written contracts.  Absent a written agreement, the law provides that the employee’s understanding of the terms of employment trumps.  Of course, the Department of Labor gets inspection and penalty rights…
  • The New York Social Security Number Protection Law became effective on January 1, 2008, so now social security privacy rights is the law.  Though new, such laws are being considered for major expansion at the federal and State level.
  • Out-of-State employees may in fact be subject to New York State taxes, despite federal exemption laws.
  • New York State and the federal government are both considering more laws and regulations to re-define what is an independent contractor versus what is an employee.  This area is a morass and employers are advised not to guess or gamble here as there are simply too many rules, penalties, and governmental agencies with differing standards involved in this area of law.  NYS even now has a special task force on employee classification – in part an enforcement team, so seek competent counsel upon these types of classification questions.
  • Rules concerning the requirement that administrative processes be utilized before a federal discrimination claim may be brought in court are disappearing.  The Courts now expressly hold that certain ADA claims are exempt from the such rules and precedents.

Hence, if you are an employer in New York State, do not assume that your decisions, rational or legal in the past, remain so today.

 


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