Real property – Adverse possession

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Where a defendant has asserted an adverse possession counterclaim, judgment should enter in his favor, as “the combination of regular yard maintenance with the installation of permanent or semi-permanent structures satisfy the element of actual use” of the disputed area.

“Whether [defendant Daniel] Chak proved continuous use of the Disputed Area for twenty years is a close call. If the only evidence of use of the Disputed Area began with the installation of the retaining wall, the date of its installation would be critical to measuring the twenty years. However, it is undisputed that [Ralph] Gramazio constructed the stone wall at the rear boundary of his property in 2001 and extended it into the Disputed Area some four feet. He testified that he believed the stone wall was entirely on his land. He further testified that he maintained ‘his’ yard in the back, which I infer means all of the land that he believed he owned. His subsequent actions of installing the retaining wall, then the shed (which would have included backfilling topsoil up to the retaining wall), planting a tree, and conducting regular maintenance on land he believed he owned confirm that he used the land at the rear of his property — including the rear section of the Disputed Area — beginning, at the latest, in 2001 and likely earlier. This is underscored by the undisputed fact that the foundation of the carriage house, which had been there for decades, formed a natural boundary between the properties and acted as a retaining wall for the land at 76 Alban. Gramazio treated everything on his side of the carriage house foundation as his property and everything on [Timothy M.] Kilburn’s side of the property as belonging to Kilburn. Thus, I conclude that he made pervasive use of the Disputed Area starting, at the latest, in 2001. Therefore, his use plus that of Chak were continuous for a period of twenty years before Smith commenced this action. …

“This is a close case. However, the natural topography of the properties, combined with the date of installation of the rear stone wall, the location of the foundation wall, and landscaped appearance of Disputed Area over many years tip this case in favor of Chak. For the reasons set forth in this decision, Chak met his burden of establishing title to the Disputed Area by adverse possession as shown on the [George C.] Collins survey admitted as Exhibit 2.”

Smith v. Chak (Lawyers Weekly No 14-019-25) (18 pages) (Smith, J.) (Suffolk Land Court) (Docket No. 22 MISC 000131) (April 14, 2025).

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