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Adam Leitman Bailey, P.C. Protects Homeowner’s Claim to Adverse Possession of Common Driveway

Adam Leitman Bailey, P.C. Protects Homeowner’s Claim to Adverse Possession of Common Driveway

Courtney J. Lerias

Courtney J. Lerias

August 2, 2021 09:40 AM

In a victory for a Brooklyn homeowner, Adam Leitman Bailey, P.C. secured an appellate victory that allows the homeowner to pursue his claim that his family’s 30 years of exclusive use of a common driveway between his house and his neighbors gave him permanent rights in the driveway.

When two Bay Ridge homes were built in the 1920s, they shared a common driveway to access the garages that were then in their back yards, and documented their mutual access to the garages in a 1927 easement. However, the garages were demolished when the city condemned portions of the back yards in the 1960s for construction of the Gowanus Expressway.

The family of Adam Leitman Bailey, P.C.’s client bought their home in 1978, with sole ownership of the home passing to the homeowner client on his father’s death in 2012. Soon after their purchase of the home, the homeowner’s family began to use the common driveway to park their cars, with a fence and locked gate across the front of the driveway barring access by anyone else.

After the homeowner’s neighbors bought their house in 2013, they sued to prevent the homeowner from parking in the driveway, and the homeowner counterclaimed, asserting that had acquired the entire driveway through adverse possession through their hostile, exclusive and continuous use and occupancy of the driveway for more than 10 years. The trial court, however, granted summary judgment dismissing the homeowner’s adverse possession claim based on its rejection of the homeowner’s affidavit describing his family’s decades of exclusive use of the driveway because it related to a time before he, personally, owned the home.

The Appellate Division, Second Department, reversed the trial court, holding that the homeowner could establish adverse possession by ‘tacking’ the time his family members, as prior owners of the home, exclusively occupied the driveway to the time during his ownership. The Appellate Division found that the homeowner’s affidavit should have been considered, and raised a triable issue of fact, on the question of whether the driveway was openly and exclusively used by the homeowners and his predecessors in title. This will allow the homeowner to proceed to trial to establish that the decades that his family used the gated driveway give him permanent rights to continue to do so and ownership of the strip of the driveway on the neighbor’s land.

Jeffrey R. Metz and Courtney J. Lerias of the appellate and real estate litigation groups of Adam Leitman Bailey, P.C. secured this appellate victory.

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