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
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
28 (A.D. 1 Dept. 2002).
In 1957, the City of New York obtained title to the subject
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
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
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
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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