1982 E. 12th ST. HOLDING LLC v. LATI, 2020 NY Slip Op 33849 – NY: Supreme Court, Kings Co.  November 17, 2020:

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Article 5 of the RPAPL, as amended in 2008, is applicable to all claims filed on or after July 7, 2008 (L 2008, ch 269, § 9). Under the current law, an “adverse possessor” is defined as a person who “occupies real property of another person or entity with or without knowledge of the other’s superior ownership rights, in a manner that would give the owner a cause of action for ejectment” (RPAPL 501[1]). The adverse possessor acquires title to the occupied real property upon the expiration of the 10-year statutory period (see CPLR 212[a]) where the use “has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual” (RPAPL 501[2]). With respect to an adverse possession claim not founded upon a written instrument or judgment, land “is deemed to have been possessed and occupied” only “[w]here there have been acts sufficiently open to put a reasonably diligent owner on notice,” or “[w]here it has been protected by a substantial enclosure” (RPAPL 522).

RPAPL 543 provides, however, that “the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls,” as well as “the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner’s property shall be deemed permissive and non-adverse.” (See Hartman v Goldman, 84 AD3d 734, 735-736 [2d Dept 2011]). Thus, under the new statute, RPAPL 543, plaintiff’s complaint does not state a cause of action. Specifically, this is because “plantings of foliage and shrubbery, and landscaping and lawn maintenance are de minimis and deemed permissive and non-adverse” (Bullock v Louis, ___ AD3d ___, 2020 NY Slip Op 06484 [2d Dept 2020]; Hartman v Goldman, 84 AD3d 734, 736 [2d Dept 2011]; see RPAPL 543).

In pre-amendment cases, the existence of the kinds of non-structural encroachments and maintenance listed in RPAPL 543 were able to be considered in determining whether the plaintiff had shown that he or she “usually cultivated, improved, or substantially enclosed the land, and the type of cultivation or improvement sufficient to satisfy the statute varied with the character, condition, location, and potential uses of the property” (id.; Asher v Borenstein, 76 AD3d 984, 986 [2d Dep 2010]).

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Even under the “old law,” adverse possession could not be obtained by planting grass and mowing it. Adding a bush or a young tree does not tip the balance in plaintiff’s favor. Nor does running a hose and a few sprinkler heads. Keeping an unfenced strip of land on the border of plaintiff’s property “in presentable condition” was found to be “inadequate to satisfy the requirement that the real property in dispute was usually cultivated or improved” (see Pritsiolas v Apple Bankcorp, Inc., 120 AD3d 647, 650 [2d Dept 2014]; see also Walsh v Ellis, 64 AD3d 702, 704, 883 NYS2d 563 [2009]; Giannone v Trotwood Corp., 266 AD2d 430, 431, 698 NYS2d 698 [1999]; Simpson v Chien Yuan Kao, 222 AD2d 666, 667, 636 NYS2d 70 [1995]; Yamin v Daly, 205 AD2d 870, 871, 613 NYS2d 300 [1994]). The same result obtains here.

Under the prior law, former RPAPL 522, “the party seeking title must demonstrate that he or she usually cultivated, improved, or substantially enclosed the land. Additionally, the party must demonstrate, by clear and convincing evidence, the five common-law elements of the claim. First, the possession must be hostile and under a claim of right, second, it must be actual, third, it must be open and notorious, fourth, it must be exclusive, and fifth, it must be continuous for the statutory period of 10 years” (Walsh v Ellis, 64 AD3d 702, 703 [2d Dept 2009]).

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To be clear, under the prior law, when a party sought to obtain title by adverse possession on a claim not based upon a written instrument, he or she had to “produce evidence that the subject premises were either “usually cultivated or improved” or “protected by a substantial enclosure” ([old] RPAPL 522[1], [2]). That party also had to establish, by clear and convincing evidence, [not a preponderance of the evidence] the common-law requirements of hostile possession, under a claim of right, which was actual, open and notorious, and exclusive, and continuous for the statutory period” (see Giannone v Trotwood Corp., 266 AD2d 430, 431 [2d Dept 1999]).

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