Did Salzberg or Sena Own The Formerly Unusable Forest Like Area?
Charles Andrew Salzberg and Kenneth Sena owned adjacent parcels of real property in Croton-on-Hudson. Salzberg purchased his property in 2011 from Daniel Scalzi, who had previously owned the property jointly with his former wife, Victoria Manes, until she transferred ownership to him in 2004. According to Scalzi, in 1987, he spent $12,000 clearings a portion of land along the common boundary of the properties, which at that time consisted of unusable forest-like area, and erecting a split rail fence on the strip, so as to integrate it into his lawn. Scalzi asserted that, thereafter and for the duration of his ownership of the property, he cultivated and maintained the strip, which also included a portion of a barbeque pit that had been built onto his property by a predecessor. Scalzi admitted that during the process of clearing the strip and erecting the fence, he realized, upon his discovery of concrete monuments in the ground, that he was over the boundary line of his property and encroaching somewhat onto the neighboring property. However, Scalzi asserted that he never advised the then owners of Sena’s property or asked their permission to use a portion of their land.
In April 2014, Sena purchased his property from Barry Friedman and Patricia Pastor. In November or December 2015, Salzberg repaired and lengthened the split rail fence, at which point, Sena asserted that the fence was on his property and demanded that Salzberg remove the entire fence. In December 2015, Sena had a contractor remove the fence and Salzberg cut down a tree from the strip.
Salzberg thereafter commenced an action seeking a judgment declaring that he was the owner of the strip by adverse possession. Sena asserted counterclaims for a judgment declaring that he was the owner of the strip and to recover damages for trespass and destruction of the tree. After the completion of discovery, Sena moved for summary judgment dismissing the complaint and on his counterclaims. Supreme Court granted the motion, and, after an inquest, awarded damages to Sena in the principal sum of $50,250. Salzberg appealed.
In 2008, the adverse possession statute was amended in its entirety to discourage people from claiming adverse possession over real property they knew belonged to another with superior ownership rights. But those amendments were not applicable since, as alleged, Salzberg’s property right vested prior to the enactment of those amendments.
Under the pre-amendment law, in order to establish a claim to property by adverse possession, a claimant must prove, by clear and convincing evidence, that possession of the property was (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period. In addition, where, was the case here, the claim of right was not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved or protected by a substantial enclosure.
Supreme Court concluded that Sena was entitled to summary judgment dismissing the complaint because, as a matter of law, Scalzi did not possess the property under a claim of right. Under the common law, that element is satisfied where an individual asserts a right to the property that is adverse to the title owner and also in opposition to the rights of the true owner. An adverse possessor’s actual knowledge of the true owner was not fatal to an adverse possession claim—because the ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period. The purpose of the hostility requirement was to provide the title owner notice of the adverse claim through the unequivocal acts of the usurper.
To be distinguished from the possessor’s subjective knowledge that another holds title, the possessor’s overt acknowledgment of title in another negates the element of hostility because it undermines notice to the owner that another is possessing the land under claim of title. Thus, where the possessor, for example, seeks permission for use from the record owner, offers to purchase the disputed property from the owner or orally concedes to the owner that title rests with the owner, the owner was no longer on notice of an adverse claim against the land and the element of hostility is negated.
In this case, Supreme Court determined that, as a matter of law, Scalzi’s possession was not hostile and under a claim of right for the entire statutory period because, at some point within that period, Manes acknowledged to Evelyn Neumann, the daughter of a former owner of Sena’s property, that she and Scalzi did not have title to the disputed strip. Even assuming that Manes had this alleged communication with Neumann, it was undisputed that several years prior to the alleged communication, Neumann’s mother had sold the property to Friedman and Pastor. In other words, any communication that Manes had with Neumann regarding the strip occurred at a time when neither Neumann nor her mother had any ownership interest in Sena’s’ property, as ownership had already been transferred to Friedman and Pastor. So it could not be said as a matter of law that any communication by Manes to Neumann, an individual with no interest in the property at issue here, negated the element of hostility.
Sena further failed to affirmatively demonstrate that Salzberg’s alleged possession of the disputed strip was not actual, open and notorious, exclusive, and continuous, or that he did not usually cultivate or improve the land, or protect it by a substantial enclosure. It was Sena’s burden, when moving for summary judgment, to demonstrate affirmatively the merits of a defense or counterclaim, which cannot be sustained by pointing out gaps in Salzberg’s proof.
Accordingly, Supreme Court erred in granting Sena’s motion for summary judgment dismissing the complaint, as well as on the issue of liability on Sena’s counterclaims, the resolution of which was dependent upon the determination that Sena was the owner of the strip. The Order of Supreme Courts was reversed and the complaint was reinstated.