Did De Minimus Plantings Lead to Adverse Possession?

This was originally posted to the SGR Blog.

“Mox Nix” If Old or New Law Controlled.

Both owners of contiguous real property have the right to landscape their side of the boundary. But, as a recent case illustrates, a Court may have to decide if, as and when such plantings and maintenance on or across the line rose to the level of adverse possession.

E. 12th St. Holding LLC sued Mousa Lati, the owner of an adjoining property, for adverse possession, trespass, and damages.

Holding’s predecessors (Bettina and Nathan Avidan) bought the property in 1995 as husband and wife; built a new house which was completed in 1998; and transferred title to an LLC in 2015 of which the Avidans are the managing members.

The Avidans claimed that, in January of 1998, they put sod, a tree, and bushes on a strip of Lati’s property which was on the edge of their property, and also installed a connection to their in-ground sprinkler system under the soil. According to the photos, the plantings created a visual barrier between Holding’s property, a private house on East 12th Street in Brooklyn, NY, and the small parking lot behind Lati’s property, an apartment building, which faces Avenue T, the adjoining street.

Lati bought the adjacent property in 1999. The property is approximately 34 feet wide and faces Avenue T, and 100 feet deep, along East 12th Street. Neither party provided a survey. But Holding claimed it acquired title to the “disputed strip” of land by adverse possession over the twenty-two years and brought suit when Lati tore the strip up in September of 2020.

The suit was commenced by order to show cause, which sought a preliminary injunction preventing Lati from interfering with Holding’s “use” of the disputed strip for landscaping during the pendency of the action. Lati cross-moved pre-answer, to dismiss the complaint as failing to state a cause of action.

Lati claimed the new law of adverse possession applied, while Holding claimed the old law applied as its rights vested before 2008 when the new law came into effect. The court granted Holding a preliminary injunction.

But the Court subsequently found that, accepting every fact alleged as true, Holding did not state a valid claim for an adverse possession action.

The first issue was whether the matter falls under the old law or the new law.

Article 5 of the RPAPL, as amended in 2008, was applicable to all claims filed on or after July 7, 2008. Under the current law, an “adverse possessor” is defined as a person who 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. The adverse possessor acquires title to the occupied real property upon the expiration of the 10-year statutory period. where the use “has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual”. With respect to an adverse possession claim not founded upon a written instrument or judgment, land “is deemed to have been possessed and occupied” only “[w]here there have been acts sufficiently open to put a reasonably diligent owner on notice,” or “[w]here it has been protected by a substantial enclosure”.

The RPAPL also provides that “the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds, and non-structural walls,” as well as “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.” Thus, under the new statute, Holding’s complaint did not state a cause of action because plantings of foliage and shrubbery, and landscaping and lawn maintenance are de minimis and deemed permissive and non-adverse.

In pre-amendment cases, the existence of certain kinds of non-structural encroachments and maintenance (now on the excluded in the RPAPL 543) was able to be considered in determining whether Holding had shown that it “usually cultivated, improved, or substantially enclosed the land, and the type of cultivation or improvement sufficient to satisfy the statute varied with the character, condition, location, and potential uses of the property”.

Holding claimed entitlement to tack any period of adverse possession enjoyed by the Avidans onto its own period of adverse possession.

The Avidans owned the property since 1995, and the claimed “adverse use” began in January of 1998. Lati did not dispute that the “adverse use” continued for ten years before July 7, 2008, the date the amendment to the statute went into effect.

The Court concluded that, on the facts of this case, Holding’s use of the disputed strip must be analyzed under the old law, not the new law. An analysis of the law of adverse possession for the time period prior to the 2008 amendment nevertheless required the conclusion that Holdings failed to state a claim.

Even under the “old law,” adverse possession could not be obtained by planting grass and mowing it. Adding a bush or a young tree did not tip the balance in Holding’s favor. Nor did running a hose and a few sprinkler heads. Keeping an unfenced strip of land on the border of its property “in presentable condition” was inadequate to satisfy the requirement that the real property in dispute was usually cultivated or improved.

Under the prior law, the party seeking title must demonstrate that he or she usually cultivated, improved, or substantially enclosed the land. Additionally, the party must demonstrate, by clear and convincing evidence, the five common-law elements of the claim. First, the possession must be hostile and under a claim of right. Second, it must be actual. Third, it must be open and notorious, Fourth, it must be exclusive. And fifth, it must be continuous for the statutory period of 10 years.

But here the alleged use was not exclusive, nor was it hostile and under a claim of right. Indeed, in her affidavit, Bettina Avidan stated:

On or about January 1998, E. 12th St. without Lati’s permission and consent entered unto the portion of 1123 [Lati’s] Property consisting of approximately five (5) feet by twenty (20) feet (the Property) which is located immediately adjacent to the 1982 [E. 12th St.’s] Property… Upon entering the Property twenty-two (22) years ago, my husband and I have used the Property as its own, cultivating and making significant improvements thereto.

In her second affidavit, she stated: “As set forth in my moving Affidavit, since 1998, we have continuously used the Property without objection from Lati.” That negated any claim of right, as she clearly knew it was not her property. There was no claim that it was indicated to be her property on any survey, nor did she claim that she ever fenced it or enclosed it before the suit was commenced.

Under the prior law, when a party sought to obtain title by adverse possession on a claim not based upon a written instrument, he or she had to “produce evidence that the subject premises were either “usually cultivated or improved” or “protected by a substantial enclosure”. That party also had to establish, by clear and convincing evidence, not a preponderance of the evidence, the common-law requirements of hostile possession, under a claim of right, which was actual, open and notorious, and exclusive, and continuous for the statutory period.

Accordingly, Lati’s cross-motion was granted and the complaint was dismissed because Holding’s stated activities on the disputed strip, as set forth in the complaint, did not constitute a claim of adverse possession, and therefore Lati did not trespass and did not owe damages for removing the sod so the area could be paved. The preliminary restraining order contained in this Court’s initial order was vacated.

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