Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the April 6, 2012 mailing of "Constructive Notice":

Court of Appeals OK's Adverse

Possession of Leasehold

A long-term lessee was awarded title by adverse possession to a portion of his neighbor’s premises. The neighboring parcel was also leased, from the same landlord.

The two adjoining beachfront parcels were separately leased to two different tenants (the parties to this action). The landlord subsequently required the tenants to erect a wooden jetty on the leased lots to inhibit beach erosion. The jetty, as constructed, appeared to be built on the lot boundary. Soon thereafter, the plaintiff erected a small dock, using the jetty for support. He later extended an existing boardwalk to reach the dock. The opinion does not give the location of the boardwalk extension in relation to the jetty.

Many years later, both lessees learned that the dock and boardwalk were actually built inside the lot line of the defendant’s lot. The dispute focused only on the claims of the two tenants to the areas occupied by the dock and boardwalk extension. After analyzing the “hostility” and “exclusivity” elements of adverse possession, the Court concluded that both elements were present (along with the other necessary elements) and were “sufficient to establish title by adverse possession” in the plaintiff. Estate of Becker v. Murtagh, 2012 NY Slip Op 02417 (April 3, 2012)


The landlord was not a party to the proceedings. Hence, the Court only adjudicated the competing rights of the lessees. In a footnote, the Court states that the “resolution of [the plaintiff’s] adverse possession claim has no bearing on [the landlord’s] interest.” But the whole idea of “adverse possession” is that it divests the record owner of title, not merely possession. When the defendant’s lease term expires, does the plaintiff still own the dock and boardwalk parcels in fee? Even if the plaintiff’s acquisition of title ultimately inures to the benefit of the landlord, how can the landlord acquire adverse possession against itself? The Court also does not discuss the undisputed fact that the original jetty (which “supported” the dock, if not the boardwalk as well) was built at the common landlord’s behest and was clearly “permissive.”