We’ve all heard that commonly yelled phrase “get off my property!!” Some of us may have even been the intended listener of that order, which is to say some of us have been troublemakers on someone else’s property. In either case, that demand by the property owner is normally complied with because we all know that the owner has property rights that he or she can enforce. As an avid “Devil’s Advocate”, I’m here to tell you that you may be able to ignore that order under the law.
Maybe you have a great relationship with your neighbor and they’ve given you permission to put up a fence that crosses into their boundary for a few yards. Or perhaps you bribed them with fresh baked pies and warm words for their consent to use their driveway. That’s all well and good, but let’s talk about something a little more contentious. What if you can’t get permission, or worse, permission is revoked after you’ve gotten used to the arrangement?
There are a number of devices in law that allow a person access to another individual’s land. Some of the most commonly known and used mechanisms are easements and licenses. Although easements can be complicated, these two instruments are usually about obtaining a right to use another’s property for a specific purpose (i.e. a shared driveway that gives access to a public road). The essential difference between the two is that a license is a personal right that is non-assignable, and a license is revocable at the whim of whomever granted permission in the first place.
Positive easements, the technical term for the definition above, can come in many forms: easement by prescription, easement by implication, easement by grant, and easement by strict necessity, for example. Without going into too much detail, the vast majority of easements are created by a signed writing, which is an easement by grant. The other three mentioned above revolve around fairness and the granting of a right to a landowner who, when considering the circumstances, deserve a right to use their neighbor’s property for a limited use. The simplest example is when a landowner sells half of her land to an unfortunate buyer, who subsequently learns that their newly purchased land is landlocked without access to a public road way. In that circumstance, an easement by strict necessity is created to give the new buyer access to reach the public way.
Easements and license are the most common counter-arguments when a dispute about permission to use land arises, but that does not mean that they are the easiest to understand. The factual circumstances and language used in any agreement are key factors, and I would absolutely advise seeking legal counsel.
Another tool, adverse possession, is taught in every Law School Property “101” class throughout the U.S. (I’m speculating). Codified in New York Real Property Actions and Proceedings Law under Article 5, § 501(1) dictates that an adverse possessor is a person who occupies real property of another person in a manner that would give the owner of the property a cause of action for ejectment. Brand v. Prince, 35 N.Y.2d 634, 636 (1974). In other words, adverse possession is a doctrine that allows a person to acquire legal title to a portion property if they have occupied the property in a manner that would give the title holding landlord the right to force the person off the property. Because it involves acquiring land without equitable consideration, acquiring title through adverse possession has never been favored under the law and the elements must be proven with a higher standard, clear and convincing evidence. Estate of Becker v Murtagh, 19 N.Y.3d 75, 80-81 (2012); NY CLS RPAPL § 501.
For every Adverse Possession claim, the claimant must establish that possession of the property was: “(1) hostile and under a claim of right; (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period (at least 10 years)”. Estate of Becker, 19 N.Y.3d at 80-81. In addition, where the claim of right is not founded upon a right that can be found in a written instrument (usually a deed), the party asserting title by adverse possession must establish that the land was “usually cultivated or improved”, “protected by a substantial enclosure” or that there have been acts sufficiently open to put a reasonably diligent owner on notice. Estate of Becker, 19 N.Y.3d at 80-81.
If you didn’t yawn as I listed the elements of adverse possession, I would advise that you consider a legal career for the audience who haven’t already. Some of these elements are self-explanatory, while others are less inviting. New York law is particularly difficult because of a recent change in the law that requires that an adverse possessor reasonably believe that the property belongs to them in order for their claim of adverse possession to be successful. Hogan v Kelly, 86 A.D.3d 590, 591-592 (N.Y. 2d Dep’t 2011). Importantly, adverse possession is unique because the day the 10 year period is met, the property has a new owner. There’s no recording or notification requirement. One day it’s one person’s land, the next, it’s somebody else’s. You can see why it’s not the most popular legal doctrine.
Another, less invasive, device that can be used to permit access onto a neighbor’s property without their consent can be found under New York Real Property Actions and Procedures Law (RPAPL) § 881. I recently came across a case that was decided February 9, 2018 by our very own New York Appellate Division that permitted a neighbor to enter their adjoining landowner’s property for the limited purpose of painting their fence on a biennial basis under the authority of § 881. Stuck v. Hickmott, 2018 WL 796320 (N.Y. App. Div. Feb. 9, 2018).
In the Stuck case, a landowner purchased residential real property and then discovered that a narrow portion of their neighbor’s driveway encroached on their property. Id. After unsuccessfully trying to remove the driveway through legal action, the new landowners decided their answer was to build a six-foot tall wooden fence along the driveway. Id. Just one problem, how were they supposed to paint the other side of the fence!? Naturally, the landowner who owned the driveway was not so inclined to be a good neighbor after having to defend a legal action to keep their driveway (should have tried the baked goods tactic first).
The solution to the problem? RPAPL § 881, of course. RPAPL § 881 allows an owner seeking to make improvements or repairs to real property to seek to obtain a license to enter an adjoining owner’s property when those improvements or repairs cannot be made without such entry and permission to enter has been refused. Id. Under the statute, a petitioned court grants the license “as justice requires” and generally applies a standard of reasonableness. Id. It is important to note that § 881 allows this license for owners to make improvements or repairs to their real property and it is not limited to fences, be sure to think outside the box.
The strategies discussed herein are just some examples of legal principles that would allow access to a neighbor’s property. Although some can be simple, like a license, many of these devices are complex and require proper drafting or even litigation. Please a lawyer about what rights you may have under the law, that is, if bribery via baked goods does not do the trick.
Article written by: Associate, Robert J. Marks.