Squatters, Adverse Possession, and 'Out of Possession' Issues: How New York and New Jersey Handle It Differently

By Pete Weinman, Esq.

"Can someone actually take my house by living in it long enough?" It's a question I get more often than you'd think — usually right after a client has seen a squatter story on the local news, or binged one of the TV shows about squatters that seem to be everywhere lately. The dramatic version of this question always gets people's attention. The legal doctrine behind it is called adverse possession, and here's something that surprises a lot of people: New York and New Jersey handle it very differently, even though they're right next to each other.

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What Adverse Possession Actually Is

Adverse possession is a legal doctrine that allows someone who isn't the legal owner of a property to eventually gain real, legal title to it — but only if they meet a demanding set of requirements over a long period of time. In both states, a claimant generally has to show their possession was:

• Actual — genuinely using the property, not just claiming it
• Open and notorious — visible, not hidden or secretive
• Exclusive — not shared with the true owner or the general public
• Continuous — uninterrupted for the entire statutory period
• Under a claim of right — occupying the property as if they had a legitimate basis to be there

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The Big Difference: How Long It Takes

In New York, the statutory period is 10 years. If someone meets all the requirements above for a full decade, they may be able to claim legal title to the land.

In New Jersey, the statutory period is 30 years — and 60 years for uncultivated or undeveloped land. That's three to six times longer than New York's requirement for the exact same doctrine.

If you own property in both states, or you're helping a family member sort out an inherited property, this is a real, practical difference — not just legal trivia.

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New York Has Also Cracked Down on Squatters Specifically

Separately from the adverse possession timeline, New York recently tightened its law specifically around squatters — people occupying a property without any right to be there, well short of the 10-year ownership threshold that would actually transfer title.

For years, confusion tied to New York's 2019 Housing Stability and Tenant Protection Act led some squatters to claim tenant-like protections simply by occupying a property for 30 days, since the law didn't clearly separate lawful tenants from unauthorized occupants — exactly the kind of scenario that made for dramatic television. Governor Hochul signed an amendment — sometimes called the "Anti-Squatter Amendments" — clarifying, in effect, that a tenant does not include a squatter. Squatters are not entitled to the same legal protections as lawful tenants, and law enforcement has clearer authority to remove them without requiring a full housing court proceeding.

One important caveat: property owners still cannot take matters into their own hands — changing locks or shutting off utilities to force someone out remains illegal. Removal still has to go through the proper legal channel; the change is about which channel applies, not about self-help.

There's also a newer bill under consideration in the legislature that would go further, giving homeowners more direct tools to address squatting situations without lengthy proceedings — but as of now, that remains a proposal, not law.

New Jersey has not enacted an equivalent squatter-specific carve-out. Removing an unauthorized occupant in New Jersey generally still runs through more traditional legal processes. There is a pending legislative proposal in New Jersey to shorten the adverse possession period itself from 30 years down to a uniform 20 years, but as of now, this has not been enacted, and the 30-year (60-year for uncultivated land) rule remains in effect.

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The Version of This I Actually See Most Often

Dramatic squatter stories make for good television, but the version of adverse possession I actually deal with in practice is much quieter — a decades-old fence that's a foot and a half in the wrong place, discovered by a title company during an ordinary home sale. Same legal doctrine, much less drama, but it comes up constantly, and it's worth understanding whichever side of a transaction you're on.

What a Survey Actually Shows

A survey is a professional measurement of your property's legal boundaries, prepared by a licensed surveyor, showing exactly where the recorded lot lines fall relative to what's physically built on the ground — fences, sheds, driveways, retaining walls, and so on.

Most of the time, physical structures line up with the recorded boundary, or come close enough that nobody thinks twice about it. But sometimes the survey reveals that a fence, shed, driveway, or other structure sits outside the recorded lot line — meaning it's physically occupying land that belongs, on paper, to the neighboring property (or vice versa). In the title and survey world, this is called being "out of possession": the physical possession line doesn't match the record ownership line.

Being out of possession is simply a factual observation from the survey. Whether it ever becomes a legal ownership problem depends on how long the discrepancy has existed, how it came about, and whether anyone has ever taken the steps required to actually claim ownership under the adverse possession doctrine.

Encroachments and a Helpful 2008 New York Law Change

An encroachment is exactly what it sounds like — a physical structure crossing over the legal boundary line onto someone else's land. Common Staten Island examples: a fence installed a few feet off from the true property line, a shed that clips the corner of a neighboring lot, or a driveway poured without anyone checking the survey first.

Here's an important nuance specific to New York: in 2008, the state significantly narrowed what counts toward an adverse possession claim. Minor, non-structural encroachments — things like a garden bed, mowed lawn area, or landscaping that extends slightly past a boundary line — are now treated as permissive use by law, meaning they generally don't support an adverse possession claim at all, regardless of how long they've been there. The doctrine is aimed more squarely at substantial, structural encroachments (a fence, a building, a driveway) maintained under a reasonable, good-faith belief of ownership — not every blade of grass that strays a few inches over a property line.

That said, "probably not enough for adverse possession" and "not something title will flag" are two different things. Title companies are conservative for a reason, and even a modest structural encroachment routinely needs to be addressed before a sale can close cleanly.

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The Real-World Example: How This Plays Out at Closing

Here's a scenario I've seen many times. A buyer's title company orders a survey (or reviews an existing one) and discovers an out-of-possession condition — say, the neighbor's fence actually sits a foot and a half onto the property being sold, according to the recorded lot lines. Title companies generally will not insure over that strip of land without resolving the discrepancy, because an uninsured gap like that is exactly the kind of thing that can turn into a real dispute later.

The standard fix is a boundary line agreement, typically executed through what's often called a fence and boundary affidavit. In practice, this means going to the neighbor whose fence is out of place and asking them to sign a sworn statement confirming, in effect: yes, we're aware the fence isn't exactly on the line, we're not claiming ownership of the strip of land on the other side of it, and we have no objection to the boundary as recorded. Once that affidavit is signed, the title company can insure over the discrepancy, and everyone moves forward with clean title.

Most of the time, this is a formality — neighbors who have lived alongside a slightly misplaced fence for years are usually happy to sign something confirming they were never trying to claim anyone's land. But it does take time, it requires cooperation from a third party who isn't otherwise part of your transaction, and it can occasionally become a sticking point if the neighbor is uncooperative or unreachable.

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Watch Out: Buyers Using a Minor Out-of-Possession Issue to Renegotiate Price

Here's where sellers need to pay close attention. I've seen buyers attempt to use a small, ultimately harmless out-of-possession finding — something that's really just a paperwork formality — as leverage to demand a price credit or concession late in the deal, well after the price was already agreed to. A foot-and-a-half fence discrepancy that a neighbor is perfectly willing to sign off on is not a structural defect and is not something that should reasonably reduce what a home is worth. But if it surfaces as a surprise during the title process, a buyer under time pressure to close may still try to use it as a bargaining chip.

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Why Sellers Should Bring Their Survey and Title Policy to Their Attorney Up Front

This is exactly why I tell every seller client the same thing: bring your existing survey and your title insurance policy from when you purchased the property to your very first meeting with your attorney — before the contract is signed, not after an issue surfaces during the buyer's title search.

If a known out-of-possession condition or minor encroachment already exists, it can and should be disclosed directly in the contract or a rider. Once a buyer has signed a contract that plainly discloses a specific, known condition — "the fence along the eastern boundary does not conform to the recorded lot line, per survey dated [X]" — that buyer is on notice. They've agreed to purchase the property with that condition disclosed and accounted for in the negotiated price. That makes it far harder for a buyer to later claim surprise and try to nickel-and-dime the price down over something that was disclosed and priced in from the start.

Waiting until the buyer's title company discovers the issue mid-transaction puts you in a reactive position instead of a controlled one. Disclosing it up front, with your own survey and title policy in hand, puts you in control of the narrative and the negotiation.

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Why This Matters If You're Buying, Selling, or Inheriting Property

This is exactly the kind of issue a thorough title search is designed to catch. Title insurance exists in large part to protect against these kinds of ownership disputes, though coverage for survey-related issues often depends on whether a current survey was provided and reviewed at the time the policy was issued — another reason to keep your old survey rather than assuming it doesn't matter anymore.

This also comes up frequently in estate situations. A property that's sat vacant for a while during estate administration is exactly the kind of property where a boundary discrepancy or occupancy issue can develop quietly, without anyone noticing until a sale forces the question.

I'll note directly: my practice is focused on residential closings and property transactions, not landlord-tenant litigation or eviction proceedings. If you're dealing with an active squatter situation requiring court action, that's a matter for an attorney who handles that type of litigation specifically. But if you're buying, selling, or handling an estate where a survey, boundary, or out-of-possession question has come up, that's squarely something I can help you work through — and the earlier in the process you bring it to me, the more control you have over how it gets resolved.

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The Bottom Line

The dramatic squatter stories on the news and on TV are real, and New York's law has genuinely changed to address them. But most of what actually shows up in a real transaction is the quieter version — a survey that reveals an old fence in the wrong spot, resolved with a simple boundary line agreement. If you're selling, bring your survey and title policy to your first meeting with your attorney so any known issue can be disclosed and priced into the deal from day one. And remember: New York and New Jersey play by very different rules here — what's a real adverse possession risk after 10 years in New York might still be decades away from mattering in New Jersey.

Pete Weinman, Esq.

Weinman Law Offices

260 Christopher Lane, Suite 201 | Staten Island, NY 10314

718-442-2010 | [email protected]

Licensed in New York and New Jersey

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