Case Study

Adverse Possession Win Despite Forgetting Property for 13 Years

The case felt like a John Grisham movie. The seller of an investment property sold it to two different people within a month of each other.  We represented the first buyer, who although was convicted for property fraud many years earlier, had innocently purchased this property and forgot about it thirteen years before the case was started.  Adam Leitman Bailey, P.C. was against two of the largest law firms in the world. An executive from another big city had flown in to attend the mediation to be held at the larger law firm’s offices on a floor that only held conference rooms with no art or pictures on the white walls and wood.  The mediator walked into our designated meeting room and took a seat.  Looking at our client he explained exactly why our client was going to lose the case:

1. The case was scheduled for a jury trial on Monday and the jury would not like our client or the facts of the case;
2. That he was a convicted felon for property fraud.
3. That he lied on his withdrawn bankruptcy petition as he had been required to list the subject property as an asset.
4. He was lying claiming that he forgot that he owned the subject property for 13 years.
5. Allegations that his deed was forged as the property was sold to someone else a few weeks after him and recorded a week after the second closing.
6. That our client did not pay consideration for the property despite the deed stating that he paid $265,000 it.
7. That our adversary collected rent and took care of the property for 13 years without hearing from our client.

As you could imagine this mediation had no chance of success and it failed.  The large firm’s attorneys looked upon us with contempt.  One of the attorneys literally snarled at our client and barked at us.  None of us understood these negotiating antics or did this man really hate the case, us and our client.  The numbers thrown out to settle the case were very low and in our opinion insulting.

We tried to explain a few facts to first the mediator and then our adversaries. To succeed in an adverse possession claim,  Adverse possession requires that one party take over the other’s ownership “adversely” and have a claim of right.  And when adversaries took out a second mortgage and conducted a title search it would have alerted them to the fact that the deed and ownership was in another company’s name.  By taking no steps to remove this owner or start a lawsuit to quiet title.  Second,  since our client was the first to buy, close and record title to the property first, it had earned proper ownership.  As attorneys we had defeated all efforts of our adversaries to try to prove a fraud or a forgery by our client.  Our client did not need to explain why and how he could forget about a property for so long.

In an intelligent and well written opinion,  a State Supreme Court judge agreed with our arguments and granted summary judgement to our client—on all accounts except one.  The only matter left was the rent owed to our client for the rent collected for the past 11 years and adversary elected to have a jury decide that amount.  The case was settled by a phone call on the evening of trial.

Adam Leitman Bailey, Colin Kaufman represented the defendant at the trial level and at settlement; Jeffrey Metz handled the appeal. An appeal to stay or stop the trial and eviction of the adversary was denied by the Supreme Court of the State of New York, Appellate Division, Second Department.