Trespass, Nuisance and Property

As of April 1, 2022, our initial retainer fee for these cases are in the range of $15,000. Potential clients must make the economic decision whether it makes sense to retain us given the extent of the trespass, nuisance or other damage to property.

Sometimes neighbors are not so neighborly. A case of Trespass or Nuisance can arise when an offending neighbor encroaches on another’s property through e.g. outright construction, or even the mere use of a portion of the victim’s property. Another example is when the conduct of one neighbor disturbs the quiet use and enjoyment of the other’s property creating a nuisance. If the victim is not careful and does nothing over time, the bad neighbor might eventually be legally entitled to that portion of the property wrongfully used, i.e. through “Adverse possession.” The victim cannot sit on his/her rights and should make efforts to oust the neighbor from encroaching on that portion which is his/hers or lose it. The nature and the stakes involved in this area of litigation make it highly contentious, and it is important to consult a New York City property litigation attorney in these circumstances.

In New York, the law is found at Real Property Actions and Proceedings Law (“RPAPL”) §501, et al. In the State of New York, a person’s real property is everything, not just in the five boroughs of New York City, but the collar counties, Long Island and upstate as well. An adjacent neighbor can gain title to a person’s property, or a portion of it, through this legal doctrine. In more obscure cases, even an unknown trespasser can stay on your property and establish the same level of legal ownership to it over time.

Adverse possession is a legal concept whose original intent was to achieve a fair result when one owner has abandoned a piece of property while the other has been using or caring for it for so long that to oust them would be unfair or create hardship. A property litigation lawyer in New York City can explain this standard in greater detail. The intent of the statutes in New York is to ensure that land is deserved by those who cultivate it and use it most productively, as opposed to those who abandon it.

In New York Courts, the burden of proof to establish a claim of adverse possession is on the trespasser. The person who actually has title to the subject property has the presumption of ownership unless the trespasser satisfies that burden. It is the trespasser’s job to prove that the judge should grant him or her title.

In New York Courts, to prove adverse possession, the trespasser must establish certain legal elements. The person who actually has title to the subject property is presumed to own it unless the trespasser satisfies that burden. It is the trespasser’s job to prove that the judge should grant him or her title.

There are a number of factors by which a New York City property litigation lawyer can prove adverse possession, primarily by the nature of the trespasser’s possession, and the length of time he or she possesses the land.

The possession must be:

1. hostile (against the right of the true owner and without permission)
2. actual (exercising control over the property)
3. exclusive (in the possession of the trespasser alone)
4. open and notorious (the trespasser uses the property as the title owner does, and he/she does so with all outward appearances to the world), and
5. continuous for the time period required by statute (ten years under N.Y. Real Prop. Acts. Law § 501 et seq.).

After amendments to the adverse possession statutes in 2008, the trespasser must have a reasonable belief that he or she owns title to the disputed property. The trespasser cannot gain the title by secret. The statute does not include “non-structural encroachments” such as shrubbery and flowers. A property litigation attorney at our New York City firm can help determine whether an encroachment is structural.

Briefly, cases of Nuisance can involve incidents of incessant noise, dust, debris or other disturbances that deny one neighbor the quiet use and enjoyment of the property.

The relief in both cases of Trespass and Nuisance can certainly involve money damages, but by and large include claims for an injunction in reversing the results of the trespass and/or nuisance.

Prior to filing a lawsuit for a neighbor’s claim, it is often helpful for neighbors to create a police report record. Before resorting to litigation, Supreme Court judges can be more easily convinced with a record of 1-3 unsuccessful attempts at getting the police involved to abate the nuisance or trespass before issuing an injunction.