Practice point: A party seeking to obtain title must prove by clear and convincing evidence the following common-law requirements: that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years.
Student note: Hostile possession does not require a showing of enmity or specific acts of hostility. All that is required is a showing that the possession constitutes an actual invasion of or infringement upon the owner's rights. Consequently, hostility may be found even though the possession occurred inadvertently or by mistake.
Case: Kelly v. Bastianic, NY Slip Op 01798 (2d Dept. 2012).
Here is the decision.
Tomorrow’s issue: Tenants-in-common.
