Among the many interesting calls that I receive, this one is a doozy.  Many years ago, the City condemned property for urban renewal.  But never moved forward after acquiring title.  It did nothing and the land remained vacant.  Then after a passage of over 15 years, someone conveyed title to the parcel.  This sale was from an owner to another private party.

The grantee, however, did not pay the City’s real estate taxes.  So, after a period of years, the City foreclosed on its tax lien taking title once again to the vacant parcel.

Now it turns out that an adjoining owner covet his neighbor’s land.  In fact, he enclosed it, paved it, and stored his inventory on the land.  This has been the state of facts for well over 10 years.  The City now seeks its land back and argues that it cannot lose title because the land was condemned for a public purpose.  My opinion is “so what.”  Yes, in order to exercise the awesome power of eminent domain, a condemnor must demonstrate a public purpose.  But forgive me – you abandoned that public use about 37 years ago.

The question then boils down to whether a government can lose title by adverse possession.  The answer depends on how the City uses the land.  If it is governmental – no.  If it is proprietary – yes.  It really doesn’t matter that the City acquired title by condemnation.  Matter of Certain Lands, etc., 127 Misc. 710 (Sup. Ct. N.Y. Co. 1926).  More recently, the Second Department held that land which is held by a municipality in its proprietary capacity is not immune from adverse possession.  Casini v Sea Gate Ass’n, 262 AD2d 593 (1999).  In Casini, certain real property was acquired by the City through a tax foreclosure.  15 years later, Plaintiff Casini successfully bid at an in rem foreclosure sale.  The property included a traffic island which was enclosed by a fence.  Thereafter, an action was commenced to enjoin the Association and telephone company from trespassing on the land.  The Association asserted a counterclaim for judgment declaring that it had acquired ownership of the traffic island by adverse possession.  The Court held, a party seeking to obtain title by adverse possession must establish that the property was either “usually cultivated or improved”, or “protected by a substantial enclosure” for the 10-year statutory period (see, RPAPL 522 [1], [2]).  In addition, as required by common law, the party must demonstrate, by clear and convincing evidence, that the possession of the parcel was hostile, under a claim of right, actual, open, notorious, exclusive, and continuous for the statutory period (see, Brand v Prince, 35 NY2d 634; Belotti v Bickhardt, 228 NY 296; Barnett v Nelson, 248 AD2d 656).  Here, the Association satisfied its burden by producing affidavits and photographs which clearly and convincingly demonstrated that it surrounded the traffic island with a concrete curb, enclosed it with a low fence, and improved the land with trees, bushes, and plants, which it continuously maintained for at least 10 years before the City sold the property at auction in February 1993.  Since the plaintiffs failed to submit evidentiary proof sufficient to raise an issue of fact as to whether the Association’s possession of the property satisfied the elements of an adverse possession claim, the Supreme Court properly concluded that the Association had established its right to ownership of the disputed property.


Posted in Adverse Possession, Title
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