Bulletin: NY000591

The Stewart Legal Department is often called upon to assist our agents and offices when interpreting NY CLS RPAPL Section 543.  This bulletin is being issued to provide guidance and as a supplement to our Bulletin 368

As stated in Bulletin 368, Stewart recommends that any variation between a physical improvement and a record property line be stated in the survey exception as a variation between the improvement and the record line.  For example:  fences vary with record line and are up to 1 foot south of northerly line.

As restated below, RPAPL Section 543 addresses de minimus non-structural boundary encroachments and minor maintenance:

NY CLS RPAPL § 543 (2016)

§ 543.  Adverse possession; how affected by acts across a boundary line

1. Notwithstanding any other provision of this article, the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.
2. Notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse.

Frequently, we are asked whether or not to raise de minimus encroachments and how to interpret “de minimus”.  Remember, Section 543 does not provide a definition of de minimus; it merely sets forth the conditions or limitations, in New York, under which a party may maintain an adverse claim for possession. The adverse party may not maintain an action of the encroachment is de minimus as set forth in the section.  Thus Section 543 does not create a safe harbor for minor variations, which if de minimus would not require the variations to be raised in the survey reading.  The variations still need to be raised in your survey reading.  The section only prohibits the assertion of an adverse claim if the “possession” is de minimius.

The term de minimus is a subjective standard and should be reviewed relative to the size and location of the encroachment.  For example, a 12 inch encroachment is not de minimus on a 1/8 acre lot located in Manhattan as compared to a 500 acre farm located in upstate New York.  To the extent the surveyor raises the encroachment, the survey reading should include such encroachment. 

If you have any questions regarding this bulletin please contact Stewart Title Insurance Company Legal Services at 212-922-0050.