Tuesday, November 1, 2011
Closing the Gates to Adverse Possession
The New York Times reports on how private landowners who open their property to the public fend off adverse possession claims:
Lever House has been closing itself once a year since 1953, when it was the brand-new headquarters of Lever Brothers. On Sunday, temporary barricades are to be erected, bearing signs saying: “This area is closed to public use on behalf of and in the name of the owner.” Some time later, an employee who was present will sign an affidavit attesting to the closing.
(photo of the Lever House courtyard found with creative commons search)
Question for you and/or any other Property Prof: isn't this really a case of public prescriptive easement, rather than adverse possession? In this case, as the article notes, the public would only be asserting a right of access, not full title (it's not like the public would be able to sell the plaza once their claim matures, they would just have a limited right to use the landowner's property). It's the difference between taking one stick out of the landowner's bundle and taking the whole bundle. Am I missing something here?
Also, the once-a-year-closing thing seems pretty over-cautious, which we lawyers are sometimes known to be. Would it not be sufficient for the building owner to place a placard on the property stating something like "Public access permitted by owner?"
Posted by: Ken Stahl | Nov 2, 2011 10:42:10 AM
On a related note, most shopping center lease forms have a provision that the landlord can close the common areas (parking lot, etc.) from time to time to prevent adverse possession.
Posted by: Tanya Marsh | Nov 1, 2011 6:15:29 AM