Background
Steven Del Vecchio commenced this action pursuant to RPAPL article 15 to quiet title to real property in Bayville, Nassau County. He alleged that in 2014 his neighbors, Claire Gangi and others, erected a metal fence that encroached onto a portion of his property along a shared boundary line. The defendants occupied that strip of disputed land and, in their answer, raised adverse possession as both an affirmative defense and a counterclaim, asserting they had acquired title to the disputed parcel through open, notorious, hostile, and continuous possession for the statutory 10-year period.
After a prior appeal in which this Court had already allowed three of Del Vecchio’s causes of action to survive a CPLR 3211(a) motion to dismiss, Del Vecchio cross-moved for summary judgment dismissing the adverse possession defense and counterclaim. The Supreme Court denied that branch of the cross-motion because the defendants had served an amended answer that the court treated as superseding the prior pleading. The Appellate Division now addressed the adverse possession claim on the merits in the interest of judicial economy.
The Court’s Holding
The Appellate Division modified the order below by granting the branches of Del Vecchio’s cross-motion seeking summary judgment dismissal of the adverse possession defense and the first counterclaim. The court applied New York’s 2008 amendments to RPAPL article 5 — the adverse possession statute — which overhauled the doctrine to curb its use by parties who knowingly encroach on land they know belongs to a neighbor.
The 2008 amendments added RPAPL 543(1), which provides that “the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.” The defendants failed to show that their alleged property right to the disputed strip had vested before the effective date of the 2008 amendments — the fence was erected only in 2014, well after the amendments took effect — so the post-2008 law applied.
Because the defendants’ claimed possession rested on the 2014 metal fence, RPAPL 543(1) conclusively deemed that encroachment permissive and non-adverse, defeating the “hostile under a claim of right” element required for adverse possession. Without hostility, the adverse possession claim failed as a matter of law, and summary judgment dismissing the defense and counterclaim was granted.
Key Takeaways
- Since the 2008 amendments to RPAPL article 5, fences, hedges, sheds, and similar non-structural encroachments are statutorily deemed “permissive and non-adverse” under RPAPL 543(1), eliminating them as the sole or primary basis for an adverse possession claim — a party whose entire claim rests on a fence loses on the hostility element as a matter of law.
- To invoke the pre-2008 adverse possession standards, a defendant must affirmatively show that the claimed property right vested before the amendments took effect; merely asserting long-standing possession is not enough if the physical encroachment postdates 2008.
- Quiet title plaintiffs under RPAPL article 15 should move early for summary judgment on adverse possession defenses when the encroachment is a fence or other de minimis non-structural improvement erected after the 2008 amendments — the statute resolves the hostility element against the encroacher as a matter of law.
- The court also addressed a procedural nuance: where an amended answer asserts the same adverse possession claim as the original, a plaintiff’s cross-motion targeting the original pleading’s claim should be decided on the merits even if the amended answer superseded it, in the interest of judicial economy.
Why It Matters
Boundary-line encroachment disputes are among the most common real property controversies in New York, and adverse possession is the weapon of choice for defendants who have occupied a strip of adjacent land for years. This decision offers a clean path to summary judgment for quiet title plaintiffs in the large class of cases where the claimed adverse possession is based primarily on a fence erected after 2008: RPAPL 543(1) resolves the hostility element against the encroacher as a matter of law, without any need for a full factual inquiry into the other elements.
For real estate practitioners and landowners in New York, this case confirms the practical significance of the 2008 RPAPL amendments. When advising property owners who are aware that a neighbor has erected a fence that encroaches on their land, counsel should act promptly to object — and should consider RPAPL 15 quiet title relief rather than waiting for the ten-year statutory period to run, since the fence itself is now permanently “permissive” under the statute regardless of how long it has been standing.