Trespass, Nuisance and 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.

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. 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.

New York Requirements

There are a number of factors to prove adverse possession in New York 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 (using the property as the real owner would, without hiding his or her occupancy), and
  5. continuous for the statutory period (ten years under N.Y. Real Prop. Acts. Law § 501 et seq.).
Requirement for “Hostility” in New York

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.

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 products of the trespass and/or nuisance.

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