February 1st

Whenever one neighbor claims ownership over some portion of another neighbor’s real property by virtue of the legal doctrine of adverse possession, the dispute between the record property owner of the disputed area and the would-be adverse possessor may escalate quickly and become very nasty, leading to expensive and time-consuming litigation. A recent appellate decision illustrates the legal limits upon would-be adverse possessors who may seek to satisfy the minimum 10-year statutory time period required for adverse possession by tacking (i.e., adding) their predecessors-in-title’s period of alleged adverse possession to their own period of alleged adverse possession. See Fidelina Diaz v. Mai Jin Yang, et al., Docket No. 2015-4291, 2017 NY Slip Op 01534 (2d Dep’t, March 1, 2017).

In Diaz, the appellate court reversed a court order that had denied the defendants’ summary judgment motion seeking dismissal of the plaintiff’s complaint, which was filed in October 2012 and which claimed, among other things, that plaintiff “has acquired title and all rights, by adverse possession, to the defendants’ portion of . . . [a] double garage and . . . [a] driveway” that were located partially on the plaintiff’s residential property, which she acquired on July 1, 2006, and partially on the defendants’ residential property. Id. It was undisputed that the plaintiff had not possessed the disputed area for ten continuous years, as required for adverse possession. Id.

To try to satisfy the statutorily required 10-year period, the plaintiff claimed that the periods of alleged adverse possession or use by her predecessors-in-title could be tacked on to her own period of alleged adverse possession or use. Id. As explained by the appellate court, “[i]n order for tacking to be applicable, a party must show that the party’s predecessor ‘intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed.’” Id. (citation omitted). In Diaz, the plaintiff failed to provide sufficient evidence to support her tacking argument, and, therefore, the appellate court determined that the defendants were entitled to summary judgment dismissing the plaintiff’s complaint.


The case of Fidelina Diaz v. Mai Jin Yang, et al., Docket No. 2015-4291, 2017 NY Slip Op 01534 (2d Dep’t, March 1, 2017), arose from a dispute between adjoining property owners over the use and possession of a double garage and a shared driveway. Even though the plaintiff had owned her property for less than ten years, she claimed that she could satisfy the statutory ten-year period for the adjoining disputed area by tacking on to her predecessors-in-title’s prior periods of alleged adverse possession or use. The plaintiff’s deed, however, did not reflect any conveyance or transfer to the plaintiff of her predecessors-in-title’s alleged possession or use of the disputed area, and the plaintiff apparently did not have any other evidence to demonstrate her predecessor-in-title intention to transfer such alleged possession or use to the plaintiff. The plaintiff’s lack of such evidence was fatal to the plaintiff’s tacking argument.

Disputes over adverse possession can be complicated, expensive, and time-consuming. Before spending time and money pursuing a potentially defective adverse possession claim, you should consult with competent legal counsel licensed to practice law in the State of New York. We can help you!

Kenneth Allen Brown (kabrown@kabrownlawfirm.com) is an experienced land use, real property, and commercial litigator, with over twenty-five years of experience. He focuses on the following areas of law in the State of New York: Boundary Disputes, Water Boundaries, and Riparian Rights, Land Use and Zoning Litigation, Real Property Litigation, Easement Litigation, and Commercial Litigation, including Partnership, Corporate, and Limited Liability Company Disputes. He is available to consult with potential clients regarding disputes between neighbors in the State of New York.

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