Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the October 30, 2013 mailing of "Constructive Notice":

Size Might Matter, After All

Interpreting one of the signature 2008 amendments to the adverse possession statutes, the Second Department has held that how de minimis an encroachment must be before it will be deemed permissive, is a fact question for trial. Wright v. Sokoloff, 2013 NY Slip Op 6856 (2nd Dept., Oct. 23, 2013).

Defendant had planted an eight-foot wide hedge on plaintiffs property, and claimed title by adverse possession. RPAPL §543(1) provides that the existence of de minimus [sic] non-structural encroachments including, but not limited to, hedges, shrubbery, plantings, shall be deemed to be permissive and non-adverse." The plaintiff contended the existence of all encroaching hedges and shrubbery, no matter how large, shall be deemed permissive and non-adverse.

The Court flatly rejected this interpretation. It held that The more reasonable interpretation of RPAPL 543(1) is that the list contains examples of non-structural encroachments which could still be adverse if they are not de minimis. Accordingly, it concluded that plaintiff raised a triable issue of fact as to whether, under the circumstances of this case, the eight-foot encroachment was de minimis within the meaning of RPAPL 543(1).


This case appears to be at odds with the Third Departments interpretation of §543(1) in Sawyer v. Prusky, 71 AD 3d 1325 (3rd Dept., 2010). In Sawyer, the Court appeared to say that any non-structural encroachment on the list would be per se de minimis and therefore deemed permissive and non-adverse.

A different aspect of this case doesnt make for sly, attention-grabbing headlines, but might be of greater concern. The Court tacitly accepts that §543(1) alters the quantum of possession needed to establish title. Deemed permissive is treated as if it is an irrebuttable presumption that can transform previously non-permissive activity. The defendants sole recourse is to fight and win the de minimis battle, despite the plaintiffs delay in bringing suit.

The planting in Wright occurred in 1999. According to the plaintiff in Wright, he immediately objected and subsequently asked the former owner on repeated occasions to remove the hedge. After the defendants purchased their property in October 2006, they also refused to remove the hedge. Clearly, the plaintiff had not granted permission.

This concern is not limited to transitional cases, where the possessory activity commenced less than ten years before the effective date of §543(1). While deemed permissive might be appropriate when the plaintiff is unaware of a minor encroachment, it seems inequitable to reward inaction on the part of a plaintiff who affirmatively declares the activity non-permissive, yet fails to bring suit.