Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the August 31, 2017 mailing of "Constructive Notice":

Tax Payments & “Claim of Right”

In 1948, Clanton’s predecessors in interest purchased real property in Brooklyn. For at least 30 years, the property was used by the New York City Department of Sanitation as a truck parking lot. During that time, the Department of Sanitation paved the property, fenced it in, and installed lighting. In 2007, the City of New York sought a judgment declaring that it had acquired title to the property by adverse possession. The Clanton Estate contended, and the trial court held, that the City's collection of tax payments from the Clanton Estate and its predecessors over the years constituted an admission or a concession the City did not possess the property under claim of right, thereby defeating its claim of adverse possession.

The Appellate Division reversed. Estate of Vertley Clanton v. City of New York, 2017 NY Slip Op 06254 (2nd Dept., August 23, 2017).

First, the Court discussed the well-known rule that a rebuttable presumption of “hostility” can be inferred simply from the existence of the remaining four elements of adverse possession. Without citing any authority, it went on to flatly state “the mere payment of taxes on the subject property is insufficient to rebut the presumption.”


Although the traditional formulation of the adverse possession elements requires the possession be shown to be “hostile and under a claim of right,” the Clanton ruling appears to equatehostility” with “claim of right,” rather than treat them as separate facets of one element. In addition, the decision makes clear that even if knowledge of the record ownership of the property by one City department (Tax Assessor and Collector) can be imputed to another City department (Sanitation), such knowledge is insufficient to defeat a claim of adverse possession by the City as a body corporate. The Court did not decide the imputation question.