I have a property in New York that has been in the family for over a hundred years. A relative owns approx. an acre that is surrounded by my property. I had a survey done and a building on his property is actually on mine. He recently sold the property and the stimulation for the new buyer was not to go through a bank or have it surveyed. I have spoken with the new owner and discussed the building. He informed me he was going to have a survey done. It's been over a month and there has been no survey. I spoke to a surveyor this morning and he could resurvey it next week. What options do I have?
2 Answers from Attorneys
Limited, depending on the length of time the encoachment existed. If it was an "open and notorious" (words of art that might come up in any litigation) you have minimal chance of recovering anything. However, depending on the size of the encroachment and the value of the land it is on, it may be worth a shot to do the survey and sue for compensation.
The law in New York changed recently. THe trespasser needs to have some color of right before adverse possession can apply. For example, if there is a mistake in a deed and the person who built the property thought he was inside the boundary, there might be a basis for adverse possession.
But probably not. Your rights depend on the extent of the encroachment. If it is below the one foot threshold, then the property can remain but it may not be reconstructed.
If it's over the one foot threshold you are entitled to mesne profits, which is like rent. It gets complicated because someone is going to say what about the statute of limitations? The answer is that there is no statute of limitations. The trespasser can raise a defense of laches, but that does not defeat your title or your right to restitution of the fair market value of the property occupied.