Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the August 24, 2011 mailing of "Constructive Notice":

Adverse Possession of Riparian Rights

In R. Forrest Scott, et al., v. Burwell’s Bay Improvement Association, 281 Va. 704; 708 S.E. 2d 858 (2011), the real estate at issue was a wharf, pavilion and series of connected piers that extended into the James River to the area between the mean low-water line and the line of navigation. It was a recreational facility known as The Pavilion. The adverse claimant, the Bracey family, had possessed and occupied The Pavilion pursuant to a recorded deed from 1989 until 2003 when the structures were destroyed by fire.  In 2006, the Burwell’s Bay Improvement Association claimed the right to redevelop the site. The Braceys sought a declaratory judgment to affirm their claim of title. Early in the litigation the trial court determined that the record chain of title was defective and did not convey record title to the Braceys. They then sought to establish title by adverse possession or at least a prescriptive easement. 

The Court held that “a claim to riparian rights over navigable waters presents a unique condition of the property that requires a special consideration of the use to which the property may be adapted.” (internal quotes omitted). The construction and maintenance of permanent structures (the wharf, etc) clearly indicated a change of condition, supporting a claim to adverse possession. The problem arose when The Pavilion was destroyed. The Virginia statute requires that the elements of adverse possession be shown for a continuous period of 15 years, and at the time of the fire, the Braceys had only been in possession for 14 years. Once the structures were destroyed the requisite “change in condition” necessary to establish “actual,” “hostile” and “notorious” possession terminated, even though The Pavilion itself was a well-known landmark that had been in existence since the 1920’s.

The decision also discusses why the Braceys were unable to use “tacking” to establish a longer period of possession, as well as the standard of proof applied in cases of this nature. 

(This is the second time the controversy has reached the Supreme Court of Virginia).

Mr. Pomerantz was retained as an expert several years ago in a case involving a claim of adverse possession of littoral rights through seasonal use. At that time there was no definitive case-law in New York on this issue. In that particular case, the court determined the controversy on other grounds and didn’t reach the substantive issue. He routinely tracks judicial, legislative and regulatory developments throughout the nation to be prepared for similar cases as they arise in New York.