A recent Third Department appellate division decision (Kheel v. Molinari, 2018 NY Slip Op 07228 (3d Dep’t Decided on October 25, 2018)) illustrates a key difference between the judicial treatment of claims for adverse possession and prescriptive easement following the 2008 amendment to the adverse possession statute, and how a party may be able to prevail on one claim and not the other under the same set of facts.
Adverse Possession Versus Prescriptive Easement
Claims for adverse possession and prescriptive easement are similar insofar as they both seek to obtain an interest in another’s land – adverse possession seeks to claim ownership of the subject land while a prescriptive easement seeks only the right to use it. The elements required to prove each claim are substantially similar, too. In order to succeed on a claim for adverse possession, a plaintiff must prove, by clear and convincing evidence, that his or her possession of the property was (i) hostile and under claim of right, (ii) actual, (iii) open and notorious, (iv) exclusive and (v) continuous for the required statutory period of 10 years. See, Fini v. Marini, 164 A.D.3d 1218, 1218, 83 N.Y.S.3d 595, 597 (2d Dep’t 2018). Similarly, to succeed on a claim for a prescriptive easement, a plaintiff must prove, by clear and convincing evidence, that the use was (i) hostile, (ii) open and notorious and (iii) continuous and uninterrupted for the prescriptive period of 10 years. See, Ciringione v. Ryan, 162 A.D.3d 634, 634, 78 N.Y.S.3d 421, 422 (2d Dep’t 2018).
Following the 2008 amendment to the adverse possession statute, it appears that a key difference between the two claims has emerged centering on the “hostile and claim of right” element of adverse possession and the “hostile” element of prescriptive easement. Prior to the amendment to the adverse possession statute, the meaning of these elements was substantially similar and could be satisfied even if the party seeking adverse possession or a prescriptive easement had knowledge that the subject property was legally owned by another person. See, Walling v. Przybylo, 7 N.Y.3d 228, 233, 818 N.Y.S.2d 816, 816 (2006). The 2008 amendment to the adverse possession statute changed this meaning for adverse possession claims vesting after the amendment became effective (there is no retroactive application of the amendment). See, SLC Coram, LLC v. 543 Middle Country Rd. Realty, LLC, 161 A.D.3d 1122, 1123, 78 N.Y.S.3d 173, 175 (2d Dep’t 2018). A claim of right for purposes of adverse possession now means “a reasonable basis for belief that the property belongs to the adverse possessor … .” RPAPL § 501(3). In other words, the adverse possessor can no longer have knowledge that the property is legally owned by another person.
Since the 2008 amendment to the adverse possession law, however, it appears that courts have refrained from applying the new adverse possession meaning of “claim of right” to the law of prescriptive easements. As such, unlike an adverse possessor, a person seeking a prescriptive easement may still have knowledge that another person holds title to the subject property. Thus, as reflected by the Kheel decision discussed below, following the 2008 amendment, a party may be able to prevail on a claim for a prescriptive easement but not for adverse possession under the same set of facts.
The Kheel Decision
In 2001, the plaintiff in Kheel subdivided a property that he had owned since 1977, retaining one lot for himself and selling the remaining contiguous lot to defendant. Between the two lots runs a driveway that is predominantly located on plaintiff’s property. A multifamily residence exists on defendant’s property, which is connected to a septic tank located on plaintiff’s property. Ten years after the subdivision, plaintiff erected a fence that blocked defendant’s access to both the driveway and septic tank. Plaintiff thereafter commenced an action seeking to quiet title with respect to the property encompassing the driveway and septic tank. Defendant, in turn, asserted a counterclaim for adverse possession of, or, alternatively, a prescriptive easement over, the subject property.
After discovery concluded, both parties moved for summary judgment. In support of his motion, defendant submitted evidence that when he purchased the property the listing notice specified that the subject driveway was on his property and that he used the driveway and septic tank for 10 years. In opposition, plaintiff submitted, among other things, evidence that (i) surveys showed the driveway and septic tank lie on his property, (ii) he advised the listing agents by letter prior to defendant’s purchase that the driveway is not located on defendant’s property and (iii) shortly after purchasing the property, defendant acknowledged that the driveway and septic tank were not on his property and sought and obtained a permit to move the septic tank.
The lower court denied both motions, concluding that unresolved issues of fact existed precluding summary judgment. The Third Department partially reversed, finding that it was undisputed on the motion that defendant had acknowledged during the statutory 10 year period that he had no reasonable basis to believe that the driveway and septic tank belonged to him. As such, defendant could not satisfy the 2008 amendment’s meaning of a claim of right and, therefore, could not make out his claim for adverse possession as a matter of law.
Implicitly holding that the 2008 amendment to the adverse possession law is not applicable to the “hostile” element of prescriptive easements (the lower court expressly held the contrary in its decision), the Third Department affirmed that portion of the lower court’s order denying the motions as they pertained to the prescriptive easement claim. Specifically, the Third Department noted that it was unclear from the record whether defendant’s use was actually hostile during the prescriptive 10 year period or with the permission of plaintiff.
Though claims for adverse possession and prescriptive easement have historically been thought of as analogous, as shown by Kheel it appears that the judiciary’s post-2008 amendment treatment of the two claims’ respective hostile/claim of right elements has created a sharp divergence between them. It is important to remain mindful of this key difference when pleading and litigating a dispute over ownership or use of real property. While a prescriptive easement provides for a more limited property right than adverse possession (i.e., use instead of ownership), it remains a useful alternative to adverse possession if establishing the 2008 amendment’s meaning of a claim of right in the context of adverse possession is uncertain.