Community Garden Wins Adverse Possession Claim

In their effort to combat a derelict and abandoned property, a group of local residents founded a community garden in 1985.  The garden covered three lots, 16, 18 and 19. Defendants (different owners throughout the relevant time periods) claimed to be the record owner of Lot 19 as it was used as part of the garden. In a long decision which we will highlight here, the First Department found that the garden’s use was open, adverse, and continuous, sufficient to withstand the dismissal of its adverse possession claim.

Starting in 1985, community residents cleared garbage, pulled weeds, and put up a fence to enclose the premises (consisting of the three lots). They planted assorted vegetation, including trees, installed playground equipment, and built a performance and exhibit stage. To improve the space, pathways and a fish pond were installed. The area was not public and was locked at night or when no community member was available to monitor its use. Over the years, many school and camp programs events were held there, and it was used generally as a community space, including for music and poetry gatherings. The members guarded the space, specifically against defendants. For example, in 1999, defendants cut the gate, entered the premises, and allegedly damaged the trees and equipment, and re-gated Lot 19 for their own use. The garden members tore down defendants’ gate, restored the garden, and reinstalled the gate so that all three lots were again combined into one parcel.

In 2013, a group with power tools and private security guards attempted to enter the garden. After a stand of, the police directed that the group be allowed into the garden. Lot 19 was then cleared and a new gate was installed segregating that Lot 19 from the others. Thereafter, New York City took steps to preserve to maintain the remaining lots as the garden.

In 2014, after defendants filed plans to build a six-story, 70 foot residential building, on Lot 19, the garden sued seeking a declaration that it was the owner of that Lot by adverse possession, as it had improved the Lot and used it exclusively in an open and hostile manner for more than 10 years. Defendants moved to dismiss claiming that the garden, as a formal corporate entity, did not exist for more than 10 years and therefore was not in exclusive possession of the property for a sufficient amount of time to maintain its claim. The garden submitted affidavits demonstrating that Lot 19 had been improved, cultivated, and fenced, and locked, since 1985, years before the garden formed as a proper entity. During that time, the garden was exclusively and extensively used by and improved for the community, to the exclusion of the owner of Lot 19.

The First Department affirmed the lower court’s refusal to grant dismissal. Citing law that went back for more than a 100 years, the Court held that during the period that the garden was an unincorporated association, adverse possession could vest in its officers. Once “duly organized,” the entity could tack on that use to complete the period required for adverse possession.

“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” (Belotti v Bickhardt, 228 NY 296, 306 [1920]).”

While the authority relied on by the Court indicated that the same people must have been involved with the association pre-formation for the period of the pendency of the claim, at the motion stage, the Court refused to say that such an outcome could not be found here.

The Court rejected a number of arguments made by defendants in support of dismissal, including that defendants’ entry into the garden destroyed the continuity of the garden’s use (the garden’s claims accrued before that time and the garden “took swift action to repair the damage caused”), and that the revised adverse possession statute required the garden to believe that it owned Lot 19 (the garden’s adverse possession claim matured before the new law took effect).

“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.”

Reading this opinion makes it clear that the Court wanted to find for the garden in refusing to dismiss its adverse possession claims. That said, given the current state of New York’s adverse possession law, the garden’s claims may not have received that welcoming a response had the claims accrued after 2008. Especially today, making an adverse possession claims requires an analysis of the technical requirements under the law and a careful application of that law to the facts alleged.

Children’s Magical Garden, Inc. v. Norfolk St. Dev., LLC

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