United States: Is That Possession Legally Adverse?

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years.

Needless to say, each and every element of the formula has developed a unique and discrete body of law – pursuant to which a final disposition is, as often than not, fact-specific.  Several recent examples follow.

Mazzei v. Metropolitan Trans. Auth., 2018 NY Slip Op 06007, App. Div. 2nd Dept. (September 12, 2018)

Plaintiff sought a judgment against the MTA declaring plaintiff the owner of certain real property by adverse possession.  Supreme Court granted MTA's motion to dismiss the adverse possession claim.

The Appellate Division summarized the action:

The plaintiff commenced this action against the Metropolitan Transportation Authority...the Staten Island Railway...and the City of New York, alleging, inter alia, that he acquired title by adverse possession to certain lots located adjacent to railway tracks in Staten Island[.]

The prior proceedings:

The plaintiff moved, inter alia, to preliminarily enjoin the defendants from accessing the property. The MTA and the Railway cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. The City submitted an attorney affirmation, inter alia, in support of the cross motion, and seeking dismissal of the complaint insofar as asserted against it. The Supreme Court denied the plaintiff's motion, and granted the cross motion of the MTA and the Railway[.]

The evidentiary standard:

Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it...Here, the evidentiary materials submitted by the MTA and the Railway in support of their cross motion do not, as a matter of law, resolve the parties' factual disputes such that it can be said that the allegations in the complaint as to the cause of action for adverse possession are not facts at all[.]

Reversing and concluding that:

Although a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute...when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession...Here, the MTA and the Railway did not conclusively establish that the property is not subject to adverse possession on the basis of governmental immunity. Although the MTA and the Railway submitted, inter alia, an agreement dated May 29, 1970, between the City, which owns the property, and the predecessors of the MTA and the Railway evincing a planned use of certain of [the] parcels of land adjacent to and near the property for a governmental purpose, that is, construction of a railway substation, the evidence did not conclusively establish that the property was part of the parcels of land designated for that planned use. Nor did the evidence conclusively establish that, during the time period relevant to the plaintiff's alleged adverse possession, the property was held for the purposes of that plan. Thus, the cross motion to dismiss must fail since a factual dispute remains as to whether, during the time period relevant to the plaintiff's alleged adverse possession, the property had been held by the government in a governmental or a proprietary capacity[.]

Fini v. Marini, 2018 NY Slip Op 06003, App. Div. 2nd Dept. (September 12, 2018)

Fini sued Marini for partition of real property.  Marini counterclaimed based on adverse possession.  Supreme Court denied cross-motions for summary judgment.

The Appellate Division summarized the action:

In this action for the partition of real property, the parties are brothers-in-law and former business partners. In 1970, they purchased [Lot 176] in Queens...as tenants in common. Thereafter, they used Lot 176 for business purposes. In 1992, the parties decided to sever their business relationship. They entered into an agreement...whereby the plaintiff would sell all of his shares of the capital stock of four corporations to the defendant, said shares constituting all of the plaintiff's right, title, and interest in those corporations. The plaintiff continued working on Lot 176 until he went on disability in 1994.

The pleadings and prior proceedings:

In 2013, the plaintiff commenced this action for the partition of Lot 176, alleging that he had a present right of possession of the premises and a right to bring this action as the owner of an undivided share in the premises. In his answer, the defendant asserted counterclaims alleging adverse possession and breach of contract, and seeking legal fees. Subsequently, the defendant moved for summary judgment dismissing the complaint and on his counterclaims. The plaintiff cross-moved for summary judgment on the complaint and dismissing the defendant's counterclaims. The Supreme Court denied the defendant's motion and the plaintiff's cross motion, finding that there were triable issues of fact regarding the ownership interests of the parties in the subject property.

Affirmed denial of Marini's motion for summary judgment:

We agree with the Supreme Court's determination to deny that branch of the defendant's motion which was for summary judgment dismissing the complaint. The defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the complaint seeking the partition of Lot 176. The defendant did not demonstrate that the plaintiff had transferred his interest in Lot 176 to the defendant, or that the parties had agreed not to partition Lot 176. Contrary to the defendant's contention, a settlement agreement dated April 25, 2002...entered into by the parties to resolve a dispute regarding a parcel of property located in Suffolk County, did not effect a transfer to the defendant of Lot 176, which is located in Queens County. Nowhere in the 2002 agreement, including, but not limited to, the third "whereas" clause in said agreement, do the parties provide that the plaintiff's entire interest in Lot 176 would be transferred to the defendant. The deed referred to in that part of the 2002 agreement which provides for the transfer of title by delivery of said deed is the deed for the Suffolk County property. Moreover, contrary to the defendant's contention, the mutual releases in the 2002 agreement did not act as a bar to the plaintiff's action for partition.

And addressed the counterclaim for adverse possession:

The defendant also failed to establish his prima facie entitlement to judgment as a matter of law on his counterclaim for adverse possession. In order to establish his counterclaim for adverse possession, the defendant was required to prove, by clear and convincing evidence, that his possession of the property was (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required statutory period ...The defendant could not establish that his possession of Lot 176 was under a claim of right, as he did not have a reasonable basis for the belief that the property belonged to him alone...Even assuming that the defendant had exclusive possession of Lot 176 and that he paid maintenance expenses on that property, these actions are insufficient to establish a claim of right for purposes of adverse possession as against a cotenant...RPAPL 541 creates a statutory presumption that a tenant in common in possession holds the property for the benefit of the cotenant...The presumption ceases only after the expiration of 10 years of exclusive occupancy of such tenant or upon ouster[.]

Actual ouster usually requires a possessing cotenant to expressly communicate an intention to exclude or to deny the rights of cotenants. Ouster may be implied in cases where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them...Here, the defendant did not commit acts constituting either an actual or implied ouster. Absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession...Even assuming that the defendant had exclusive possession of the property after the plaintiff went on disability in 1994, the required 20-year statutory period had not elapsed when the defendant asserted his counterclaim for adverse possession in his answer on September 26, 2013.

Children's Magical Garden, Inc. v. Norfolk St. Dev., LLC, 2018 NY Slip Op 05223, App. Div. 1st Dept. (July 12, 2018)

Supreme Court denied defendant's motion to dismiss the adverse possession claim.

The Appellate Division summarized the facts:

This appeal involves what must be an extremely rare occurrence in Manhattan, to wit, a claim of adverse possession of prime real estate located in the Lower East Side neighborhood of Manhattan. Specifically, we are presented with a dispute over a vacant corner lot located at 157 Norfolk Street at its intersection with Stanton Street, one block south of East Houston Street in lower Manhattan. Plaintiff Children's Magical Garden...a not-for-profit corporation incorporated in 2012, is a community garden founded by its members in 1985 on Lots 16, 18, and 19 in Block 154. The Garden was founded by activists outraged by the accumulation of garbage and used needles on the lots located across the street from an elementary school.

Defendants Norfolk Street Development, LLC, S & H Equities (NY), Inc., and Serge Hoyda are alleged to have been the record owners of Lot 19 during the prescriptive period. Defendant 157, LLC is alleged to have purchased the property from Norfolk Street Development on or about January 6, 2014.

The question presented:

The central issue presented by this appeal is whether plaintiff stated a claim for adverse possession of Lot 19 by sufficiently pleading the continuous possession element. We find that the complaint sufficiently pleaded a cause of action for adverse possession[.]

The complaint:

The complaint alleges that more than 30 years ago, in 1985, the Garden was founded by community activists who sought to improve their neighborhood. Because crime plagued the neighborhood at that time, and used needles and piles of garbage littered the abandoned corner lot in question — across the street from elementary school P.S. 20 — these neighborhood activists decided to build what plaintiff describes is now a "neighborhood icon." Plaintiff also states that defendants and their predecessors abandoned Lot 19 as a "shameful eyesore" and that plaintiff and its members took possession and "by their tremendous efforts transformed the [p]remises into a vibrant community garden where generations of children have thrived."

Among other things, Garden members, starting in 1985, cleared garbage and debris, pulled weeds, and erected a chain-link fence to enclose the premises. They planted fruit, vegetables, plants, bushes and trees, including an apple tree and a dogwood tree, built a seesaw and other playground equipment, and added a stage used for concerts and to display art. Over the years, neighborhood children have used the stage to put on performances. At some point, members also built a fish pond and pathways throughout the Garden.

Plaintiff also alleged that the Garden has never been open to the general public, and that the premises can only be accessed by first unlocking the gate with a special key secured only by members. Members keep the gates locked at night and any other time the Garden is not in use under the supervision of a member.

In addition, over many years the Garden hosted various schools, afterschool and camp programs for science, math, culinary arts, and community service activities. Each year, the Garden hosted local youth for the planting of a "pizza garden" and in the fall held a pizza-making party on the premises where children enjoyed the harvest of vegetables.

Other events held at the Garden included poetry readings and music events during the summers, and each September the Garden hosted a concert as a participant in the Vision Festival Jazz in Gardens Series. The Garden was also opened each December 21st for a Winter Solstice celebration with art and live music.

Plaintiff maintains that throughout all these years the Garden's members protected the Garden's claim of right, including against defendants. As an example, plaintiff alleges that in August 1999, defendants Hoyda, Norfolk, and S & H Equities or their agents cut through the Garden's exterior fence and entered the premises. They claim that a tree planted more than a decade earlier was chopped down and a children's clubhouse was damaged. A makeshift interior fence was also erected. However, Garden members immediately tore down the fence and removed it. Members also repaired the other damage.

According to plaintiff, in May 2013, a group of men with power tools and construction equipment accompanied by private security guards arrived at the Garden, and signaled their intention to breach the exterior fence. A standoff took place with Garden members blocking the gate. Ultimately, police officers ordered the group of men to be given access to the premises. Plaintiff alleged the men were defendants or their agents and that among them was an attorney purporting to represent defendant Hoyda.

The men "trampled, destroyed, and dug up plants, shrubs, trees" and erected a metal fence inside the Garden purporting to barricade Lot 19 from the remainder of the other two lots. Defendants also employed a private security firm to guard the premises.

Plaintiff states that despite requests from various public officials to remove the fence, the fence still cuts across the premises rendering certain vegetable beds, trees and a meditation area inaccessible.

The subsequent developments:

In July 2013, the other lots that make up the Garden — 16 and 18 — were preserved under New York City's GreenThumb program after Manhattan Community Board 3 passed a resolution declaring that it "very strongly favors a proposal to the extent possible to preserve the whole community garden." Under that program, the New York City Department of Parks and Recreation enters into licensing agreements with community groups which create and maintain gardens on city-owned vacant property.

According to the record evidence, on or about December 15, 1998, defendant Serge Hodya, through 28 Properties, Inc....entered into a contract of sale to purchase 157 Norfolk Street, Lot 19, from 88 Holding Corp. In the contract, 88 Holding warranted that it would deliver Lot 19 "vacant and free of any occupancy and any claim of right of occupancy." In or about November 1999, 28 Properties brought an action against 88 Holding for specific performance and a declaration that it must satisfy the vacancy condition of the contract. 28 Properties' complaint alleged that "a portion of the Premises, has been, and remains, occupied by third parties claiming a right to use and occupy a portion of the Premises (emphasis in original)."

In an affidavit filed in that action, after 88 Holding took no "action to remove the unlawful occupants," defendant Serge Hodya admitted that 88 Holding "claimed that such occupancy was illegal and unauthorized." Despite the foregoing, Hodya "waive[d] the condition in the contract that the premises be delivered vacant...Accordingly, by order entered May 30, 2003, the court (Walter B. Tolub, J.) granted 28 Properties' motion for summary judgment.

On or about August 27, 2003, defendant Norfolk Street Development LLC (Norfolk, d/b/a 28 Properties), in which Hodya is a member, and an affiliate of defendant S & H Equities (NY), Inc., became the record owner of Lot 19. By deed, dated January 9, 2014, Norfolk conveyed Lot 19 to defendant 157, LLC, allegedly for $3,350,000 and other consideration.

The pleadings and prior proceedings:

Plaintiff commenced this action in 2014, alleging that defendants had filed an application to construct a six-story, 70-foot-tall residential building on Lot 19. The complaint asserts six causes of action, including one for declaratory judgment that plaintiff is the sole and exclusive legal and equitable owner of Lot 19, via adverse possession. With regard to that cause of action, plaintiff alleged that the Garden was surrounded by a fence and has been cultivated and improved and accessed by a locked gate since 1985. Plaintiff also alleged that it had possessed Lot 19 continuously under a claim of right for not less than 10 consecutive years, and had possessed it in a hostile, actual, open and obvious manner which was exclusive and continuous for that time period.

Defendants each moved to dismiss the complaint for failure to state a cause of action, claiming that since the Garden did not exist until December 2012, it could not have occupied the property for the requisite period. They also asserted that the complaint fails to allege any occupancy by plaintiff was done under a claim of right.

The opposition to the motion to dismiss:

In opposition, Kate Temple-West, the president and director of the Garden, stated that when she moved to 153 Norfolk Street in 1997, she observed that the Garden, which was enclosed by a fence, had various trees and bushes planted in it and structures that were regularly maintained. Temple-West also observed children playing in the Garden, which was managed by members, who controlled access with a key and supervised visitors. Temple-West became involved with the Garden soon after moving to the neighborhood and has since helped others to excavate and demolish the burned-down remains of a building that once stood on Lot 19, using shovels, pick-axes, and wheelbarrows. Beginning in or about 2000, Temple-West hired trucks to haul away rubble and debris from the Garden and has since hired dumpsters and/or trucks approximately once per year for maintenance.

Since Temple-West's arrival in 1997, she and other members have installed chicken wire on the perimeter chain-link fence to keep rats and garbage out. They have laid down soil and compost, planted various types of trees and shrubs, constructed brick paths that run through the garden, built a swing set, and observed and/or overseen the installation of a second seesaw, concrete art sculptures, a traditional medicine plant bed, a youth meditation area, and a rain garden. In 2003, Temple-West became the Garden's co-director. She later became the director. In December 2012, the Garden incorporated and took title to Lot 19. Temple-West became the Garden's president and director. David Currence and Eve Berkson are the two other board members.

Temple-West noted the Garden's role in the community since her arrival, including hosting various student groups, the Cub Scouts, pizza-making parties, concerts, poetry readings, and movie nights, and noted recent events, including the installation of a chicken coop in 2012. As of the time of submission of Temple-West's opposition to defendants' motion to dismiss, the Garden had over 20 active adult members and 30 children who used the Garden each week, and events hosted at the Garden are attended by hundreds of community members.

In his affidavit, Barden Prisant explained he was a member of the Garden from about 1985 until 1991, during which time he, Carmen Rubio, and Alfredo Feliciano cultivated, improved, and maintained the Garden. In 1985, the Garden was filled with piles of garbage, discarded metal, and other debris. Prisant, Rubio, Feliciano, and others cleaned up the Garden, planted trees and bushes, and oversaw the installation of structures, including a seesaw, pond, and wooden stage. Prisant remained a member of the Garden until 1991, when he moved away. During his time as a member, Prisant, who contributed financially to the Garden, observed that no one was permitted access unless either he, Feliciano, or Rubio had opened the gates and was present, and that the Garden was enclosed by a chain-link fence, which was accessible by gates at Stanton and Norfolk Streets.

During Prisant's involvement with the Garden, members put on various programs, including a May Day festival at which a Maypole was erected in the Garden. At Christmas time each year, children would decorate a pine tree which he and Feliciano had planted. The wooden stage was used for painting and acting classes as well as for musical performances.

Prisant averred that since 1985 the Garden has been enclosed by a chain-link fence. After Prisant moved in 1991, he converted his wife's studio apartment at 151 Norfolk Street into his office and passed the Garden daily, on his way to and from work. For approximately eight years thereafter, on a daily basis he observed that the Garden, which had a steady growth of trees and plantings, remained enclosed by a chain-link fence, with gates that were kept locked unless the Garden was under supervised use. He also observed during that time period that Rubio, Feliciano and others he understood to be members continued the care and maintenance of the Garden.

The decision of Supreme Court:

Supreme Court denied the motions to dismiss. In so doing, the court found that no allegations in the complaint and no documentary evidence showed that plaintiff overtly acknowledged defendants' ownership of the property or defeated plaintiff's assertion that it occupied the property under a claim of right. Thus, the court found that for pleading purposes the complaint adequately asserted a claim of right. The court also rejected defendants' contention "that the plaintiff's occupancy was not continuous for the statutory period," finding that plaintiff's recent date of incorporation was inconsequential and that plaintiff adequately pleaded an unbroken chain of privity between the members of the Garden for the statutory period[.]

The legal template:

In order to establish a claim of adverse possession, a plaintiff must prove that the possession was: (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous throughout the 10-year statutory period...In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was "usually cultivated or improved" or that the land "has been protected by a substantial enclosure"...The only elements in dispute here are the "claim of right" and "continuous" elements.

Defendant's contention:

Defendants argue that plaintiff failed to plead sufficient facts evidencing continuous possession by its predecessor members for the statutory period, through an unbroken chain of privity, by tacking periods between anonymous possessors who are not alleged to have intended to transfer title to the incorporating members. This argument is based on the fact that plaintiff was incorporated in 2012 and defendants' contention that there is no allegation that plaintiff had the necessary privity with Garden members prior to incorporation. This argument fails, particularly at the pleading stage of this litigation.

Affirming and concluding that:

Here, the complaint sufficiently alleges possession by the Garden members for nearly 30 years before the Garden was incorporated. As set forth above, the allegations include significant work by the members to clean the abandoned lot and transform it into a treasured community resource containing a fish pond, playground equipment, trees, plants, and a stage, all of which has been fenced-off with access restricted by members. Such allegations, if proven, would establish adverse possession by the members for the statutory period.

Further, to the extent that the complaint alleges and the record evidence shows that there has been a succession of different individual Garden members, "[a]ll that is necessary in order to make an adverse possession effectual for the statutory period by successive persons is that such possession be continued by an unbroken chain of privity between the adverse possessors"[.]

*     *     *

Here, the complaint sufficiently alleges that plaintiff's predecessor members continuously occupied Lot 19, improved the land, restricted entry and kept out intruders, and thus actually occupied the land in a manner adverse to the true owner. Therefore, the complaint satisfies the "hostile and under a claim of right" element. Moreover, as neither plaintiff nor the predecessor members have overtly acknowledged any of defendants' rights to Lot 19, and there is no indication that the use was permissive, Supreme Court properly found that the claim of right element had been sufficiently asserted.

Braunstein v. Hodges, 2018 NY Slip Op 00401, App. Div. 2nd Dept. (January 24, 2018)

The Appellate Division, as follows, summarily affirmed denial of plaintiff's motion for a preliminary injunction:

The plaintiffs commenced this action for a permanent injunction enjoining the defendant from interfering with an alleged easement over certain real property. The defendant submitted an answer in which she alleged that the subject easement had been extinguished through adverse possession. More than seven months later, the plaintiffs moved for a preliminary injunction enjoining the defendant from interfering with the alleged easement during the pendency of this action. The Supreme Court denied the plaintiffs' motion[.]

To establish the right to a preliminary injunction, the plaintiff must demonstrate (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the grant of the injunction, and (3) a balance of the equities in the plaintiff's favor...Here, the plaintiffs failed to establish these three elements. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion for a preliminary injunction.

Thomas v. Slaton, 2018 NY Slip Op 00392, App. Div. 1st Dept. (January 23, 2018)

The Appellate Division, as follows, summarily affirmed Supreme Court's denial of plaintiff's cross-motion for summary judgment:

Triable issues of fact exist as to whether plaintiffs' possession of the subject property was hostile and exclusive for the statutory period of 10 years[.]

Bratone v. Conforti-Brown, 2017 NY Slip Op 04094, App. Div. 2nd Dept. (May 24, 2017)

In an action to determine claims to real property, Supreme Court, after a non-jury trial, dismissed plaintiff's first and second causes of action which alleged adverse possession.

The Appellate Division summarized the facts:

This action pursuant to RPAPL article 15 is to compel the determination of claims to a parcel of real property located on Vernon Boulevard in Long Island City...The property was acquired in 1960 by brothers-in-law Clemente Bratone (the individual plaintiffs' father) and Ray Conforti (the defendants' father). Upon Bratone's death in 1966, Conforti became the sole fee owner. By deed dated September 7, 1971, Conforti transferred ownership of a portion of the property to the plaintiff Vernon-Sutton, Inc....a corporation formed in 1960 by Conforti and Bratone. Conforti retained title to the remaining portion of the property, and it is this parcel...that is the subject of this action. The plaintiffs Arthur Bratone, Ronald Bratone, and Steven Bratone collectively own 50% of VSI's stock, and the defendants, Linda Conforti-Brown and Martha Conforti, own the remaining 50% of VSI's stock.

The pleadings:

In 2007, the plaintiffs commenced this action, alleging, inter alia, that VSI had acquired title to the disputed parcel through adverse possession. In response, the defendants maintained that they own the disputed parcel, having inherited it from their father. In addition, the defendants asserted, in their answer, derivative counterclaims on behalf of VSI, which alleged that certain transactions approved by the individual plaintiffs constituted a waste and mismanagement of VSI's corporate assets.

The decision of Supreme Court:

After a nonjury trial, the Supreme Court, in a judgment, dismissed, inter alia, the plaintiffs' first and second causes of action, which alleged adverse possession. The court determined that VSI's use of the disputed parcel was with the implied permission of the owner and that such permission was never repudiated. In addition, the court dismissed the defendants' first and third counterclaims. The court determined, in effect, that the evidence did not demonstrate that the money expended was a waste of corporate assets[.]

Concluding that:

The Supreme Court properly determined that VSI is not the owner of the property by adverse possession. Under the law as it existed at the time that the plaintiffs commenced this action, where a claim of adverse possession was not based upon a written document, plaintiffs had to demonstrate that they "usually cultivated, improved, or substantially enclosed the land"...In addition, an adverse claimant must establish by clear and convincing evidence that possession of the property was "(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period"[.]

The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the "unequivocal acts of the usurper"..."Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity"...However, where there is a close and cooperative relationship between the record owner and the person claiming title through adverse possession, the presumption of hostility may not apply..."[T]o establish the hostility element, the party asserting the adverse possession claim must `come forward with affirmative facts to establish that the use [of the property] was under a claim of right and adverse to the interests of [the true owner]'"[.]

"When the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner"...Such permission can be express or implied...and "if the first possession is by permission it is presumed to so continue until the contrary appears"[.]

Here, the Supreme Court's determination that VSI's initial entry and continued presence on the property, including the disputed parcel, was with the implied permission of record owners Bratone and Conforti was warranted by the facts. Indeed, the evidence is uncontroverted that Bratone and Conforti were agents of VSI, responsible for managing its daily operations. Thus, while no formal written agreement existed, VSI's initial entry and use of the property, including its use of the disputed parcel, was implicitly permissive based on Bratone's and Conforti's knowledge regarding the ownership of the property and VSI's use of the property...Contrary to the plaintiffs' contention, the fact that the permitted use was overly broad did not effectively repudiate the permission granted...Rather, "permission is presumed to so continue until the contrary appears"..."adverse possession will not arise until, there is a distinct assertion of a right hostile to the owner"...Here, VSI's use of the property from 1960 until about 2005 remained consistent with the implied permission initially granted by Bratone and Conforti. The first distinct assertion of a right hostile to the owner did not occur until about December 2005, when VSI first began to explore selling the entire property...This action was commenced in 2007. Consequently, the plaintiffs failed to prove that they possessed the disputed parcel under a hostile claim of right for the required statutory period of 10 years. Since this is, in part, a declaratory judgment action, the judgment should have included a provision declaring that VSI is not the owner of the property by adverse possession[.]

Lorenz v. Soares, 2018 NY Slip Op 50019(U), Sup. Ct. West. Co. (January 10, 2018)

In an action to determine claims to real property, defendants moved for summary judgment and plaintiffs cross-moved to amend their complaint.

Supreme Court summarized the facts:

Plaintiffs are the owners of real property located at 3 Bayden Road, Ossining, New York. Plaintiffs purchased the property in April 2005. The backyard of 3 Bayden Road is adjacent to three different properties that are located on Feeney Road, including 10 Feeney Road, owned by the defendants. Defendants acquired title to their property in January 1988. A chain link fence existed on the strip of property that runs along the southern boundary of defendants' lot and close to portions of the northern boundary of plaintiffs' lot. The fence was located entirely on the defendant's property and was set back approximately ten feet.

The pending action:

Plaintiffs commenced this action seeking to quiet title by adverse possession of the area of defendants' property between the chain link fence and the boundary line of plaintiffs' property, which covers approximately 800 feet...and damages for trespass, nuisance, and an injunction. Plaintiffs allege that between 2005 and 2015, they maintained the grass of the disputed land and planted a vegetable garden. Plaintiffs also assert that a shed was erected on the disputed land by their predecessor in interest.

The relevant testimony:

At an examination before trial, plaintiff Jason Lorenz testified that he and his wife purchased 3 Bayden Road on April 22, 2005. Prior to purchase, they viewed the back yard and observed a chain-link fence on defendants' property. There were trees and shrubbery in front of the fence.

Mr. Lorenz testified that 3 Bayden is a pie shaped piece of property. On the northerly side of the backyard there are three abutting neighbors' property lines; the defendants' property is in the middle. A post and rail fence began at the front of 3 Bayden Road and continued to the backyard and became L-shaped into the first abutting property. From there, a chain link fence attached on defendants' property and continued the length of the southern portion of defendants' property. Mr. Lorenz described the chain link fence as green and 4 feet tall. The disputed land was south of the chain link fence and reached the property line. Mrs. Lorenz testified at her examination before trial that she measured the disputed land as 80 feet long. Plaintiffs replaced the post and rail fence in 2010. Plaintiffs never performed any maintenance or repairs to the chain link fence.

Mr. Lorenz never had any conversations with the prior property owners about the disputed land. Plaintiffs planted four arborvitaes in 2010 on the disputed land. There are also maple trees on the disputed land. The maple trees have been there as long as plaintiffs owned the property. Mr. Lorenz does not know who planted the maple trees. According to plaintiffs, when they purchased their property, a metal shed existed in the backyard on the disputed land which was put up by Brian Rink, a previous owner of the 3 Bayden property. Mr. Lorenz moved the shed in 2010.

Mr. and Mrs. Lorenz both testified that between the time plaintiffs purchased the property in 2005 and 2010, they did not plant anything on the disputed land and merely mowed the area and cleaned up any fallen branches. They testified that a shed was located on the disputed land. In 2010, they retained a company to take down pine trees and planted four arborvitaes on the disputed land. In the spring of 2011, plaintiffs planted a vegetable garden on the disputed land.

Plaintiffs had a pool installed in their backyard in 2015. Around that time, defendants removed the chain link fence. As a result, plaintiffs did not have a proper barrier around the pool and had to install a fence on their property. It was at that time that they started investigating a lawsuit with respect to the disputed land.

Brian Rink, a previous owner of the plaintiffs' property, testified that he and his wife moved to 3 Bayden Road in 1993. They lived in the house for two or three years and then rented it for approximately three or four years prior to selling the property. Mr. Rink testified that he erected an aluminum shed on the property. Mr. Rink testified that when installing the shed, he tried to keep it on his own property because he didn't want any problems. He thought the trees denoted the property line. Mr. Rink intended to install the shed about a foot away from the property line. Mr. Rink was shown [an exhibit] and was asked to mark the location of the shed that he installed. Mr. Rink drew a box entirely within the boundary of 3 Bayden Road to depict the location of the shed. He testified that he did not do any clean up, planting, or mowing of the disputed land.

Defendant's arguments:

Defendants move for summary judgment dismissing the complaint. Defendants argue that awarding plaintiffs adverse possession of the disputed land would violate public policy as a Town of Ossining Zoning Ordinance requires that all single family residences occupy a minimum lot area of 15,000 square feet. The size of the lot of defendants' property is 15,156 square feet and if they lost 900 square feet to plaintiffs, their property would not be in compliance with the zoning ordinance.

Defendants further argue that there has been no showing of exclusive occupancy by plaintiffs of the disputed land. The chain link fence, defendants argue, was a flimsy wire green fence and was not a substantial enclosure...In addition, while plaintiffs assert that a portion of the shed was erected on the disputed land, Mr. Rink, who installed the shed, testified that it was entirely within plaintiffs' property and was not situated on the disputed land. Defendants argue that the minimal acts of mowing grass and cleaning branches are not adequate to put them on notice of adverse possession. Defendants argue that the plaintiffs have not satisfied the ten-year requirement for adverse possession, which, if at all, did not begin until 2010 when plaintiffs cleared the disputed land and planted a garden. Defendants also seek summary judgment in their favor on the causes of action for trespass and nuisance arguing that since plaintiffs do not own the disputed land, they cannot assert such claims.

Plaintiffs' opposition:

[A]s to the merits, plaintiffs argue that issues of fact exist in this case including whether the shed erected by Mr. Rink was on the disputed land; whether the disputed land was visible from defendants' property; whether the plaintiffs' use of the disputed land was continuous for ten years; whether the chain link fence qualified as a substantial enclosure; whether the plaintiffs' use of the property is sufficient to indicate exclusive ownership; and whether the plaintiffs' predecessor in interest built the fence. Plaintiffs argue that the defendants' zoning ordinance argument is without merit and unsupported by any applicable law. Further, plaintiffs argue that their claims for trespass and nuisance should not be dismissed as the ownership of the disputed land is at issue in this action.

The legal template:

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years[.]

Adverse possession of property for the statutory period vests title to the property in the adverse possessor...Adverse possession for the statutory period of time cuts off the true owner's remedies and divests the owner of his or her estate...Thus, at the expiration of the statutory period, legal title to the land is transferred from the owner to the adverse possessor[.]

Moreover, "[a] party claiming adverse possession may establish possession for the statutory period by tacking the time that the party possessed the property onto the time that the party's predecessor adversely possessed the property"...In order for tacking to be applicable, a party must show that its' predecessor "intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed"[.]

The 2018 amendments to the RPAPL:

In 2008 the Legislature enacted changes to the provisions of the RPAPL with respect to claims of adverse possession. The 2008 amendments include "rewriting RPAPL 501 to include, for the first time, a statutory definition of the `claim of right' element necessary to acquire title by adverse possession"...Pursuant to RPAPL 501(3), as amended, a claim of right is defined as "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be"[.]

Moreover, the 2008 amendments abrogate the common law of adverse possession and define as 'permissive and non-adverse' actions that, under the prior statutory law and long-standing principles of common law, were sufficient to obtain title by adverse possession...:

  1. Notwithstanding any other provision of this article, the existence of de minimus [de minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.
  2. Notwithstanding any other provision of this article, 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.

The 2008 amendments to RPAPL article 5 took effect on July 7, 2008, and apply to all claims filed on or after the effective date of the amendments..."The 2008 amendments to the adverse possession statutes contained in RPAPL article 5 are not applicable where the alleged adverse possessor's property right, as alleged, vested prior to the enactment of those amendments"...Where title has vested by adverse possession, it may not be disturbed retroactively by newly-enacted or amended legislation. RPAPL 501 (2), as amended, recognizes that title, not the right to commence an action to determine title, is obtained upon the expiration of the limitations period[.]

Defendants argue that plaintiffs cannot establish a claim of right or exclusive occupancy and have not satisfied the ten-year requirement. Plaintiffs argue that whether the 2008 amendments apply or whether the prior law applies, defendants are not entitled to summary judgment.

Here, the 2008 amendments to RPAPL article 5 are applicable to this action...as the plaintiffs had not possessed the disputed property for 10 years when the statute was enacted and their purported adverse possession did not vest prior to the enactment of the statute in 2008[.]

Concluding that:

[D]efendants demonstrated prima facie entitlement to judgment as a matter of law dismissing the complaint. Defendants demonstrated that the plaintiffs' use of the disputed property was not under a claim of right or continuous for ten years. In this case, the plaintiffs' acts of clearing branches from the disputed land, mowing the lawn, or the existence of a shed on the disputed land are permissive and non-adverse...The permissive use of the property at issue "negates the element of hostility necessary to establish a claim of adverse possession"[.]

In opposition, plaintiffs failed to raise a triable issue of fact. Plaintiffs fail to raise an issue of fact that the 10-year period could be satisfied by tacking on the periods of adverse possession or use by their predecessors, since they offered no evidence that their predecessors intended to and actually turned over possession of the disputed property with the portion of the land included in the deed[.]

Accordingly, inasmuch as the plaintiffs have not acquired title to the disputed land by adverse possession, the defendants are entitled to summary judgment dismissing the remaining causes of action seeking to recover damages for trespass, nuisance, and injunctive relief[.]

Kheel v. Molinari, 201y NY Slip Op 32058(U), Sup. Ct. Tompkins Co. (September 28, 2017)

Supreme Court, in addressing cross-motions for summary judgment, summarized the pleadings:

This case involves a property dispute between two neighbors, Plaintiff, Thomas H. Kheel, Esq....and Joseph A. Molinari...Kheel commenced this action on October 25, 2016, under Article 15 of the Real Property Actions and Proceedings Law ("RPAPL") seeking a declaratory judgment to compel determination of claims to real property, and RPAPL § 641 to compel Molinari to remove a septic system on Kheel's land. Molinari served an Answer to the Complaint on or about November 7, 2016, and also served a separate Verified Counterclaim on or about the same date, seeking an easement and a finding made of a nuisance by Kheel, and that Kheel cease and desist from certain conduct, and remove a fence that Kheel had erected in 2011.

The facts:

Kheel acquired his property in 1977, and Molinari has owned the property adjacent to Kheel since 2001. There is a driveway and septic tank that services Molinari's property, but which is located on Kheel's land. Kheel had a fence built that Molinari claims keeps him from accessing the septic system, and Molinari's driveway.

The competing claims:

Molinari claims that when he acquired the property, the listing said it included the paved driveway, which he has been using for more than 10 years. However, it appears the driveway is actually on the land owned by Kheel, who put up a fence that prevents Molinari from being able to use the driveway or access the septic system. During the course of the 2 prior actions, there was an Order permitting the draining of the septic system, which was completed. Molinari has submitted evidence that there is no area on his property where a septic system could be located, and thus, he needs access to the septic system which he has been using on Kheel's land. Molinari seeks an order to have Kheel remove the fence, and that he be allowed to access the septic service and have use of the driveway. Molinari claims he has satisfied the elements for a claim of adverse possession.

The legal template:

The law of adverse possession, as it applied prior to the 2008 amendments, was stated by the Court of Appeals as follows:

Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely...To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years). . . The character of the possession must be such that [it] would give the owner a cause of action in ejectment against the occupier...In addition, where, as here, the claim of right is 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 inclosure...Because the acquisition of title by adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence.

The 2008 amendment:

"In 2008, the adverse possession statute...was amended in its entirety...to, among other things, discourage people from claiming adverse possession over real property they know belongs to another with superior ownership rights. Among the changes, the Legislature defined the terms "adverse possessor," "acquisition of title," and "claim of right"...and altered the requirements that must be made out where the adverse possession claim is not based on a written instrument...These changes included a definition for claim of right to mean "a reasonable basis for the belief that the property belongs to the adverse possessor, or property owner."...In addition, "[t]he 2008 amendments replaced the language `[w]here it has been usually cultivated or improved'...with '[w]here there have been acts sufficiently open to put a reasonably diligent owner on notice.'"...Specifically, RPAPL § 522 now provides that "[f]or the purpose of constituting an adverse possession not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others: 1. Where there have been acts sufficiently open to put a reasonably diligent owner on notice. 2. Where it has been protected by a substantial enclosure. . ."

The Amendments went into effect on July 8, 2008 and apply to all cases filed on or after that date. The amendments do not apply when the adverse possession ripened before the effective date of the amendments...In the instant case, Molinari owned the property since 2001. Therefore, his adverse possession claim would not have ripened, or vested, by the time of the 2008 amendments, and accordingly, this action is governed by the amended statutes.

Molinari's contentions:

Molinari contends that he met the elements for adverse possession by the fact that he has used the driveway for maintaining his residence and accessing the septic system for more than 10 years. He also points out that when he acquired the property, the listing indicated that the driveway was included as part of his property. "The purpose of the hostility requirement is to provide the tile owner notice of the adverse claim though the `unequivocal acts of the usurper.'"...Hostility will be presumed if the use is open, notorious and continuous for the 10 year period...Molinari's acts were sufficiently open to put a reasonably diligent owner on notice. Here, the parties are neighbors, and Kheel has been present to observe all the acts. Molinari also claims that he has used the driveway in connection with the residence, and also to access the septic system which serves only his property. As such, he claims it shows actual, open and notorious and exclusive use for more than 10 years[.]

Those assertions, if true, would show that Molinari's use was hostile, and under a claim of right because he had a reasonable basis for thinking he owned the property (by relying on the listing). While Kheel objects to the property listing as hearsay, and also argues that the recorded deeds and surveys undercut Molinari's claim, the appropriate inquiry is Molinari's belief, and whether that belief was reasonable. The Court finds that Molinari has made out a prima facie case for summary judgment on his adverse possession claim.

The shifting burden of proof:

The burden of proof is then shifted to Kheel to raise a triable issue. Again, as noted above, Kheel argues that there was no dispute in the recorded deeds and property descriptions as to the true ownership of the disputed land- this does raise a question as to whether Molinari had a reasonable belief that the lands encompassing the driveway and septic system belonged to him. Kheel also disputes that Molinari actually serviced the septic system between 2002 and 2016, and disputes if the septic system and leech field are still in use. He also contends that Molinari's property was vacant for several years and there were no occupants. Therefore, he claims that the Defendant has failed to establish the requisite time frame for an adverse possession claim.

Concluding that:

At this juncture, the parties have submitted conflicting evidence, precluding summary determination. Based upon a review of all the factors, the Court concludes that a triable issue is presented on the adverse possession claim, and as such, Defendant's Motion for Summary Judgment on adverse possession must be DENIED.

168-170 Flushing Ave, LLC v. Feruary 22, LLC, 2018 NY Slip Op 06710, App. Div. 2nd Dept. (October 10, 2018)

In an action to determine claims to real property, Supreme Court granted plaintiff's motion for summary judgment awarding title as a result of adverse possession to that portion of the neighboring property that was encroached by plaintiff's automobile repair shop garage.

The Appellate Division summarized the facts:

The plaintiff and the defendant February 22, LLC...own adjoining real property in Brooklyn. The plaintiff acquired its property, which had been developed as a gas station and automobile repair shop, in 2002. In 2013, shortly after acquiring its property, the defendant demanded that the plaintiff remove a portion of the automobile repair shop garage and driveway which encroached upon a triangular strip of the defendant's lot.

The prior proceedings:

Thereafter, the plaintiff commenced this action pursuant to RPAPL article 15 to be awarded title to the disputed strip as a result of adverse possession. Following discovery, the plaintiff moved for summary judgment. The Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment awarding it title as a result of the plaintiff's adverse possession to that portion of the disputed strip that is encroached by the automobile repair shop garage[.]

The legal template:

In order to establish adverse possession, the plaintiff was required to demonstrate, by clear and convincing evidence, that its possession has "been adverse, under claim of right, open and notorious, continuous, exclusive and actual" for a period of 10 years[.]

Concluding that:

The plaintiff satisfied this burden with respect to that portion of the disputed strip that is encroached by the automobile repair shop garage, which is a substantial enclosure...The evidence submitted in support of the motion demonstrated that the garage had been erected prior to the plaintiff's acquiring title to the property, the automobile repair shop had been in continuous operation throughout the plaintiff's 10 years of ownership, and its use of the garage was exclusive...In opposition, the defendant failed to raise a triable issue of fact[.]

Diaz v. Mai Jin Yang, 2017 NY Slip Op 01534, App. Div. 2nd Dept. (March 1, 2018)

Supreme Court denied plaintiff's motion for summary judgment dismissing the complaint and for summary judgment on their first, third and fourth counterclaims.

The Appellate Division summarized the facts, pleadings and prior proceedings:

The plaintiff owns residential real property that is adjacent to the defendants' residential real property. A double garage and a driveway are located partially on the plaintiff's property and partially on the defendants' property. The plaintiff acquired her property by deed recorded on July 1, 2006. In October 2012, the plaintiff commenced this action pursuant to RPAPL article 15, seeking, among other things, a judgment declaring that she had acquired title and all rights, by adverse possession, to the defendants' portion of the double garage and the driveway, and that an easement over her property in favor of the defendants' property to access the double garage was extinguished. The plaintiff also asserted causes of action seeking to recover damages for use and occupancy, trespass, and slander of title. The defendants moved for summary judgment dismissing the complaint and for summary judgment on their first, third, and fourth counterclaims, which sought a judgment, inter alia, declaring that they are the owners of the disputed property and that the plaintiff has no interest in the disputed property, and related injunctive relief. By order dated February 26, 2015, the Supreme Court denied the motion, and the defendants appeal.

The legal template:

To establish a claim of title to real property by adverse possession, a party must prove, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years...In 2008, the Legislature amended the adverse possession statutes...These amendments included the following statutory definition of the "claim of right" element: "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be"...Furthermore, to extinguish an easement, a party must establish, by clear and convincing evidence, the five elements of adverse possession: that the party's use of the property adverse to the owner of the easement has been (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years[.]

Computing the statutory period:

"A party claiming adverse possession may establish possession for the statutory period by 'tacking' the time that the party possessed the property onto the time that the party's predecessor adversely possessed the property"...In order for tacking to be applicable, a party must show that the party's predecessor "intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed"[.]

Reversing and concluding that:

Here, the defendants' submissions were sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. They submitted evidence demonstrating, among other things, that the plaintiff's use of the disputed property was not hostile and under a claim of right, but was permissive. In this regard, permissive use of the property at issue "negates the element of hostility necessary to establish a claim of adverse possession"...In opposition, the plaintiff failed to raise a triable issue of fact. It is undisputed that the plaintiff did not possess the disputed property for the 10-year statutory period. Contrary to the plaintiff's contention, she failed to provide evidence that the 10-year period could be satisfied by "tack[ing]" on the periods of adverse possession or use by her predecessors...Consequently, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the plaintiff's adverse possession causes of action.

Since the plaintiff did not acquire title by adverse possession of the disputed property, the defendants are entitled to summary judgment dismissing the remaining causes of action, which sought to recover damages for use and occupancy, trespass, and slander of title...The defendants are also entitled to summary judgment on their first, third, and fourth counterclaims. The defendants submitted the deed to their property as well as a survey of their property establishing that they are entitled to the requested declaratory and injunctive relief[.]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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