“Adverse possession” is a doctrine of property law under which title to real property can be acquired, under certain circumstances, where a party occupies another’s property for a sufficient length of time. (In New York, the required period is usually ten years.)  A judge recently applied this doctrine in the context of a Manhattan cooperative in Green v. Board of Directors of 880 Fifth Ave. Corp., Index. No. 102398/12 (Sup. Ct. N.Y. Co. Oct. 21, 2014).

 

The plaintiff was a cooperative tenant-shareholder who acquired the shares allocated to Unit 17E and took occupancy in 1981. A neighbor owned the shares allocated to Unit 17F down the hall.  Thirty years later, in 2011, the Board of Directors asked plaintiff to sign an affidavit attesting that an accompanying floor plan correctly showed the location of the demising walls and the dimensions of his apartment.  This led plaintiff to investigate and to discover that according to the offering documents, two rooms contiguous to his apartment were allocated to his Unit 17E.  Plaintiff had always been told that these two rooms were allocated to Unit 17F, even though they did not adjoin Unit 17F, but no documentation was located to that effect.  Plaintiff declined to sign the affidavit.

 

Meanwhile, the Board adopted a resolution approving a sale of Unit 17F and stating that the purchaser was entitled to use the two rooms. Plaintiff then sued Board of Directors and the new owner of Unit 17F, seeking a determination that the two rooms were part of his Unit 17E and not Unit 17F.  Plaintiff alleged that the Board had breached its fiduciary duty by failing to ensure that any reallocation of shares or redesignation of apartment configurations was properly documented and legally justified.  In opposition, the defendants provided an affidavit from the former owner of Unit 17F, reflecting that the prior occupants of Unit 17F were using the two rooms at the time he purchased the apartment in 1970, and that he had continued to use them throughout his occupancy.  He also stated that before 1970, a portion of Unit 17E’s living room had been transferred to Unit 17F and that the space was reconfigured and shares were reallocated at that time.  He asked the court to infer that the two additional rooms were also transferred at that time.

 

The court awarded summary judgment to the defendants. It determined that the 10-year statute of limitations barred plaintiff’s claim and that the owners of Unit 17F had acquired the two rooms by adverse possession.  The possession of the two rooms by the owners of Unit 17F had been actual, open and notorious, and exclusive, satisfying all elements required for adverse possession.

 

While some courts have treated ownership of cooperative apartments as real property for purposes of adverse possession, the unique characteristics of cooperatives may still be significant in applying the relevant legal principles. For example, in 1050 Fifth Avenue v. May, 247 A.D.2d 243, 668 N.Y.S.2d 600 (1st Dep’t 1998), the court rejected a tenant-shareholder’s claim that a terrace had become part of her unit because she had been openly and notoriously using the terrace for thirty years, where the proprietary lease provided that any shareholder’s use of space outside the shareholder’s apartment was “pursuant to a revocable license granted by the owner.”  Ganfer & Shore, LLP represented the successful cooperative in that litigation.