New York Court Finds “Occasional Forays” by True Owner is Insufficient to Defeat Adverse Possession Claim

The New York Supreme Court, Nassau County, recently dismissed a motion to quiet title, finding that “occasional forays” by a true owner is insufficient to defeat the exclusivity element of an adverse possession claim where the adverse possessor has alone cared for or improved the  property as if it were their own. See Strenger v. Gellman, 609487/2020 (N.Y. Sup. Ct. Feb. 2, 2021). In the case, adjoining property owners disputed ownership of a 24 foot by 3 foot piece of land located in the rear of their respective properties.  Plaintiffs sought to replace a fence that was located on the disputed property and extended three feet inside the plaintiffs’ property. However, defendants claimed that the existing fence was located on the property line because defendants acquired title to the disputed property by virtue of adverse possession. Defendants alleged that they had exclusive use of the disputed strip since 1997, during which time defendants erected a playhouse that remained until 2014, and later used the disputed property as a vegetable garden and a play area for their children. Conversely, plaintiffs claimed that they had total access to the disputed property by means of the gate and that the property was used by plaintiffs to access, among other things, plaintiffs’ central air conditioning unit and sprinkler valve control box, which the former owners installed in 1993. Plaintiffs moved to quiet title and enjoin defendants from asserting rights or title to the disputed property, and defendants cross-moved for a declaratory judgment granting them ownership of the property. 

The Court denied both parties’ motions. First, the Court noted that “[t]o establish a claim for adverse possession, a party must demonstrate: (1) hostile possession, (2) under a claim of right, (3) actual, open and notorious, exclusive and continuous for the statutory period of 10 years” by “clear and convincing evidence[.]” Moreover, since the adverse possession claim was not based upon a written instrument and title allegedly vested in 2007, prior to the amendments to the Real Property Actions and Proceedings Law,  the defendants were required to show that the parcel was either “‘usually cultivated or improved’ or ‘protected by a substantial enclosure[.]’” Here, the Court found that plaintiffs could not defeat the exclusivity element for an adverse possession claim because plaintiffs’ central air conditioning unit and sprinkler valve control box were not located on the disputed property and maintenance of such did not require access to the disputed property. Moreover, the Court found that even if plaintiffs occasionally accessed the disputed property, “occasional forays” by the true owner is insufficient to defeat the exclusivity element “where the party claiming title by adverse possession has alone cared for or improved the disputed property as if it were his or her own.” Similarly, the Court found that defendants failed to demonstrate as a matter of law that they acquired title to the disputed property via adverse possession. Google Earth images of defendants’ property from 2012 and 2013 did not reveal a playhouse on the property, as alleged by defendants, and the pictures submitted by defendants in support of their motion were undated.  Nevertheless, even if defendants established their presence in the disputed property during the time in question, “the area acquired by adverse possession [was] limited to the area actually occupied and possessed, and neither the playhouse nor the garden [were] alleged to take up the entire Disputed Area.” Accordingly, the Court denied both motions.

For a copy of the decision, please contact Michael O’Donnell at, Michael Crowley at, Desiree McDonald at, or Andrew Raimondi at