The “Paper Street Rule” Meets the “Practical Location Doctrine” at the Intersection of Centre Avenue and Bay 43rd Street

This was orginally published on the SGR Blog.

Street parking space is an extremely  valuable commodity in New York City, in general, and in densely  populated  residential neighborhoods, in particular. A recent spat between neighbors in Brooklyn implicated both the statute and case law  governing the several elements of a  claim of  title by adverse possession, with the overlay of two Court-made rules or doctrines, as well as a legal presumption and a shifting burden of proof.

Waterview Towers, Inc. and 2610 Cropsey Development Corp. are owners of properties in Brooklyn that abut Centre Place, a private driveway/street. Waterview owns tax block 6933, lot 55. Cropsey owns tax block 6933, lots 48 and 51. A small parking area has existed along the half of Centre Place abutting the Waterview property since prior to Cropsey’s purchase of the neighboring lot in 2005.

The properties located at tax block 6933, lots 51 and 55 also abutted a mapped street known as Stillwell Avenue/Bay 43rd Street. In 1959, that subsection of Stillwell Avenue/Bay 43rd Street was eliminated and ultimately became part of the Waterview’s building complex. After acquiring lots 48 and 51, Cropsey claimed ownership of the entirety of Centre Place, including the small parking lot historically used by Waterview and its predecessor in interest.

Waterview filed suit alleging that it had acquired title to the disputed portion of Centre Place through adverse possession. After a nonjury trial, Supreme Court found that Waterview met the requirements to obtain title to the disputed property by adverse possession and dismissed Cropsey’s counterclaims. Cropsey appealed.

In 2008, the Legislature enacted changes to the adverse possession statutes. In this case, since title allegedly vested in Waterview by adverse possession in 2006 at the latest, the law in effect prior to the amendments was applicable. Accordingly, Waterview was required to demonstrate that its possession was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years, and that the subject parcel was “usually cultivated or improved” or “protected by a substantial inclosure.”

The purpose of the hostility requirement was to provide the title owner notice of the adverse claim through the unequivocal acts of the usurper. Hostility could be inferred simply from the existence of the remaining four elements, thus shifting the burden of proof to the record owner to produce evidence rebutting the presumption of adversity.

The facts implicated both the” paper street rule” (a street that appears on a map but has not been built or is not in drivable) and the “practical location doctrine” (acquiescence by contiguous property owners for a period of time exceeding the statute of limitations).

The appeals court found that Waterview established that its possession was actual, open and notorious, exclusive, and continuous for the statutory period of 10 years. And that the section of Centre Place that it utilized as a small parking lot was usually cultivated or improved. Accordingly, the burden shifted to Cropsey to produce evidence rebutting the presumption of adversity. Contrary to Cropsey’s contention, the so-called “paper street rule” was inapplicable under the circumstances and could not defeat Waterview’s claim, because Centre Place had been opened and in existence as a street for more than 100 years. Thus, Waterview satisfied all the prerequisites for a finding of adverse possession. And the “ practical location doctrine” applied so as to place the boundary line of Centre Place along the center line of that street.

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