Adverse possession.

Practice point: 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, 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 of at least 10 years. Because the acquisition of title by adverse possession is not favored under the law, the elements must be proven by clear and convincing evidence.

Student note: 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 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.

Case: Air Stream Corp. v. 3300 Lawson Corp., NY Slip Op 06903 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Strict products liability.