Sometimes
it happens when you buy land, you get a new survey taken of the property, and
it shows that a neighbor’s fence or hedges encroaches on your land. You want that fence or hedge removed and set
on the property line. You go to the
neighbor and ask real politely, and it is like talking to the wall (pun
intended). Hopefully your first reaction
is to call Alexander Novak, your lawyer, to start a lawsuit, but that is not such
great advice. Here is why:
Old
encroachments on your land call into play the law of adverse possession. If the adverse possession lasted 10 years,
you lose your land. However, in 2008 the
New York Legislature changed that law to make it much easier for you, the
landowner, to win and get that fence taken down. The new legislation changed
the common law rule of adverse possession.
Under common law, things like erecting a shed, digging a trench, mowing,
planting and raking grass, constructing underground dog wire fence, installing
post for birdhouse, cultivating garden, and erecting
fences were all winning arguments for adverse possession, but not any more.
These actions are now called “permissive and non-adverse” actions.
But do not run to court so
fast! If your neighbor had already done
those things for 10 years before the new 2008 law came into effect, she or he could
still win despite the new law. The
courts in New York have ruled that the neighbor is entitled to the application
of the old version in effect when her claim to the disputed property allegedly
ripened into title. The NY Court of Appeals
said, “although a statute is not invalid
merely because it reaches back to establish the legal significance of events
occurring before its enactment, . . . the Legislature is not free to impair vested
or property rights.” So if the neighbor could have won in 2008, then she or
he could still win today. This lawsuit
will be very fact oriented.
