I put this one up because of the numerous questions I got about the DD a few days ago where a Massachusetts town lost an adverse possession case and the court did not mention the "public purpose" disability. Presumably Massachusetts follows a rule similar to the New York doctrine followed here.
Daily Development for Thursday, May 22, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC
School of Law
Of Counsel: Blackwell Sanders
Peper Martin
Kansas City, Missouri
dirt@umkc.edu
ADVERSE POSSESSION; DISABILITY RE PUBLIC
PROPERTY: Adverse possession claim is
viable on land owned by
city and not designated
by the city for public use.
Eller Media Company v. Bruckner Outdoor Signs, Inc., 753
N.Y.S.2d
28 (A.D. 1 Dept. 2002).
In 1957, the City of New York obtained title to the subject
property by
means of a tax sale. The
claimant constructed a billboard on the property
in 1980, surrounded by a six foot high chain link fence, and since
that
time had rented the property to various
billboard tenants.
The court noted that New York has certain statutory
requirements for
adverse possession, as well as
common law requirements, and that the
claimant
in this case had satisfied all of them by constructing a valuable
improvement on the property, erecting a fence, and
maintaining all as an
open and notorious
unpermitted possession
The court acknowledged that certain public property is not
subject to
adverse possession. In New
York, however, public agencies may invoke
this
rule only as to property held for a public purpose. Under the
New
York Administrative Code, property acquired
by the City through tax
foreclosure is presumed
to be held for public purpose for three years,
after which it loses the benefit of that presumption unless the
City
designates it specifically for public
use.
The presumption of public use, which lasts 3 years from the
time the city
acquired the property, had
expired in 1960 - about the time the billboard
use began - [a mere coincidence?] and since then the city had
not
declared that it owned the property for
public use.
Comment: Different jurisdictions have different rules on the
point. Some
protect all public property
from adverse possession. Others, as here,
apply that protection only to property held for "governmental"
as
opposed to "proprietary
purposes."
Readers are encouraged to respond to or criticize this posting.
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