Prior to 2008, the New York rule allowed for a broad interpretation of the elements of a successful adverse possession claim. New York recognized a successful claim even if the adverse possessor knew, upon occupation, that the land was another’s. Additionally, New York’s former law allowed for a wide range of productive activities that would be considered adverse. A claimant only needed to show that the land was “usually cultivated or improved” or “protected by a substantial enclosure” under his direction for the ten-year statutory period. The courts recognized that the simple acts of mowing the lawn or building and maintaining a fence for the statutory period were sufficient for successful adverse possession claims. Even the placement of shrubs was deemed sufficient.
Many legal scholars suggest that adverse users with intent to divest their neighbors of their property should not be rewarded for their malicious purposes. However, the intended focus of adverse possession was not on the knowledge of the industrious user, but rather on the failure of the title owner to act. Even if the adverse user was using and maintaining the property with the subjective intent to gain title through adverse possession, his objective could not be realized without the failure of the current owner to either (1) put his own land into production or (2) thwart the adverse user’s actions. Therefore, the owner cannot blame the adverse user’s occupation for his loss, but rather his own failure to be a personally responsible landowner by not regularly inspecting, maintaining, and controlling his own property.
Mowing the lawn, building a fence, and planting shrubs may be considered trivial acts at first glance, but a deeper examination reveals that these actions exemplify adverse possession’s intended principles. The owner’s failure to inspect, maintain, and control his property frequently prompted the adverse user to engage in these activities. Aside from the adverse user’s knowledge (or lack thereof) of ownership of the disputed property, his actions put the otherwise untamed property into productive use. These actions serve the community by conserving the neighborhood standard and maintaining property values. Furthermore, the adverse user provides this service through his own labor and expense. Therefore, when title transfers to the adverse possessor, it rewards him for picking up the slack of the now former owner. Likewise, the prior owner is penalized for neglecting his property, which, if not for the adverse user, would have fallen into unsightly disrepair.
Lastly, the former owner cannot claim that he is overly burdened by the requirements to inspect, maintain, and control his property. In New York, the owner could accomplish this responsibility simply by walking his land once every ten years and giving permission to those engaging in activities on his property. Failure of the owner to even engage in this simple activity clearly shows his lack of personal responsibility and care for his holdings. Once again, a primary goal of adverse possession is to award land to those “who value it much more highly than . . . the record owners.”
New York’s Former Adverse Possession Law
