LEGAL CORNER: The Recent Decision in Gelles v. Sauvage—A Review of Adverse Possession

In a recent decision, Gelles v. Sauvage, issued on Jan. 9, 2025 [see https://bit.ly/4gI7CBv], the Bronx County Supreme Court granted the plaintiff’s motion for summary judgment on a cause of action to quiet title and held that the plaintiff-acquired title by adverse possession to a portion of the defendant’s property, which was occupied by a stone garage that encroached upon the defendant’s property. For real estate professionals, particularly real attorneys and real estate agents, it is important to be aware of potential adverse possession issues that could exist when marketing a property and also when preparing a contract of sale in connection with a real estate transaction.

The Facts in Gelles v. Sauvage

In 1997, the plaintiff purchased real property in the Bronx which abutted the property of the defendant. The garage was present since before the plaintiff purchased the property. It consisted of “three walls made of 18–inch–thick stone, a roof, a floor, and (at one point) doors.” In 2005–2006, the plaintiff also submitted evidence that “her husband poured new concrete in the garage, painted the exterior walls, and installed new roofing.”

In April 2015, the defendant hired workers to demolish that portion of the stone garage that was located on her property, which they did in fact demolish. The plaintiff soon commenced this action to quiet title to the area where the stone garage was located and claimed that “she had acquired the stone garage area by adverse possession during the 10 years following her acquisition of her property.”

The Basic Elements of Adverse Possession

The Supreme Court points out that in order to establish adverse possession, a plaintiff must “must establish that the character of the possession is: (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a period of at least 10 years.” The court further explains that “where a claim of right is not based on a written instrument, [the] former [Real Property Actions and Proceedings Law Section (“RPAPL”)] 522, which the parties agree applies, requires that the land must have been ‘usually cultivated or improved’ or ‘protected by a substantial enclosure.’” It is important to note that there were some significant changes in the adverse possession law in 2008, however, since the events leading to the adverse possession claim predated the 2008 changes, the previous requirements and case law governed in this action. In this action, the plaintiff was able to show not only that the property was “protected by a substantial enclosure” but that the plaintiff also “improved” the property.

Higher Standard of Proof: ‘Clear and Convincing’ Evidence

The court also points out that a plaintiff in an adverse possession action is “required to prove each element by clear and convincing evidence.” According to the Ninth Circuit, citing the United States Supreme Court in Colorado v. New Mexico (1984), “When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.” [See https://bit.ly/3EMwpr6]. Establishing a claim by “clear and convincing evidence” is not an easy burden to overcome in a lawsuit, and justifiably so, particularly where individuals stand to lose their ownership rights in real property.

Actual, Open and Notorious Possession

The court points out that the defendant did not challenge the actual, open and notorious elements of adverse possession. The evidence presented by the plaintiff clearly established that the plaintiff had actual possession of the property and did so in an “open and notorious” manner leaving little room for any challenge that these elements were not met. However, the defendant “contend[ed] that [the] plaintiff failed to establish entitlement to summary judgment…and did not establish the elements of continuous, hostile, and exclusive possession.”

The Element of ‘Continuous Possession’

The court explained that “As to continuous possession for the requisite 10–year period…, plaintiff submitted evidence that she and her husband continuously used the garage for either rental purposes, the proceeds of which went exclusively to plaintiff, or personal parking and storage since they took ownership of the Gelles property in June 1997.” As previously indicated, the plaintiff and her husband also made significant improvements to the garage. The court pointed out that “Their affidavits are neither equivocal nor open to opposing presumptions.” Additionally, the court held that the defendant failed to produce any evidence establishing that the plaintiff’s possession of the garage, and particularly the portion of the garage located on the defendant’s property, was not continuous for the requisite 10-year period.

The Element of ‘Hostile Possession’

The court also explains what constitutes the element of “hostile possession” and pointed out that “[a] party…is not required to show enmity or specific acts of hostility.” Instead, the court explains that the plaintiff need only to show she possesses the property and exhibits “usual acts of ownership.” There is then a “presumption of hostility,” which the defendant must rebut. In this case, the plaintiff testified that she never sought the permission of the defendant “to use or improve the stone garage area and had no agreement, oral or written, to use it.” The plaintiff presented proof that she used, improved and even rented out the garage since 1997. The plaintiff’s husband also testified and presented an affidavit that they refused the defendant’s request to allow her and her son to park their car in the garage.

Rebuttable Presumption of the Hostility Element

The court points out that the defendant argued, relying on existing caselaw (see Estate of Becker v. Murtagh at https://bit.ly/4hKcnfi], that “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.” A “close and cooperative” relationship could “rebut” the presumption that the element of hostility exists. However, the plaintiff and her husband testified that they did not have a good relationship with the defendants. The defendants also confirmed this at a deposition, and the court held that the defendants failed to rebut the presumption of hostility.

The Requirement of ‘Exclusive Possession’

The court explained that “in order to demonstrate ‘exclusive’ possession, the party claiming adverse possession ‘must alone care for or improve the disputed property as if it were his/her own.’” The court further explained that the same evidence presented by the plaintiff to establish the elements of “continuous” and “hostile” use also provided the “clear and convincing” evidence to establish the “exclusive” use element.

The defendant, in an attempt to counter the “exclusive use” element, argued that the plaintiff no longer had exclusive use of that portion of the garage since they had demolished it. Unfortunately, the court points out that this exercise of control by the defendants occurred after 18 years, which is long after the requisite 10-year period and by then the plaintiffs had already acquired adverse possession rights. Ultimately, the court decided the case in favor of the plaintiff and not only awarded summary judgment, but awarded the plaintiff costs as well.

Be Aware of Adverse Possession and Other Potential Encroachments

As is evident in the Gelles case, adverse possession and other encroachment issues can end up being very costly. The defendant actually demolished the structure which the court ultimately decided belonged to the plaintiff. While not always the case, sometimes issues, such as the one that arose in the Gelles case, can be avoided early on if there is a survey available for review. While the plaintiff here ultimately succeeded in court, it came at great time and expense.

Potential issues such as a garage or other encroachments (e.g., fences, sheds, walls, etc.) may be discernible on a survey and could, at the very least, raise a red flag early on. It is important for real estate practitioners, especially those representing buyers, to ask the other side for a copy of an existing survey or a prior title report or title policy. Many times, a prior title report or title policy may contain survey exceptions highlighting potential title and adverse possession claims, and alert a buyer to potential issues before entering into contract and ultimately purchasing the property.

Legal Column author John Dolgetta, Esq. is the principal of the law firm of Dolgetta Law, PLLC. For information about Dolgetta Law, PLLC and John Dolgetta, Esq., please visit http://www.dolgettalaw.com. The foregoing article is for informational purposes only and does not confer an attorney-client relationship and shall not be considered legal advice. The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the views or positions of HGAR, its affiliates, or any other entity.