Recorded Deed Reservation as Repudiation: When Familial Permissive Use Becomes Hostile for Adverse Possession

1. Introduction

Gordon v Rich is an intra-family boundary and warehouse dispute arising from a decades-old subdivision and overlapping use of a warehouse built in 1953. The parties—cousins by extended family relationship—own adjoining parcels separated by Shunpike Road in the Town of Jackson, Washington County. A 2019 survey revealed that deed calls placed the warehouse and surrounding cleared area on the plaintiff’s (western) parcel, not the defendants’ (eastern) parcel.

The plaintiff sued under RPAPL article 15 to quiet title. The defendants counterclaimed under RPAPL article 5, asserting adverse possession. The key issues were:

• When did possession become “hostile” in a family-permission setting where hostility is not presumed?
• Do the 2008 RPAPL adverse possession amendments apply?
• Did defendants prove the RPAPL elements—especially “claim of right” and “open and notorious” conduct—by clear and convincing evidence on summary judgment?

2. Summary of the Opinion

The Third Department affirmed summary judgment for defendants, holding they acquired title to the disputed area by adverse possession. The court treated the use of the warehouse as permissive at inception (1963) and presumed that permission continued until repudiated. The repudiation occurred in 2005 when defendants’ predecessor recorded a deed reserving to himself “the exclusive right and privilege to use the warehouse and surrounding clear grounds” for life—an act the court deemed hostile and sufficient to start the 10-year clock. The prescriptive period therefore ran from 2005 to 2015, vesting title before the plaintiff’s 2019 survey discovery. Defendants also established “claim of right” under RPAPL 501(3) through longstanding tax maps and community/family understanding of the boundary as Shunpike Road.

3. Analysis

A. Precedents Cited (and How They Shaped the Result)

B. Legal Reasoning

1) The governing statute was the post-2008 RPAPL scheme.
Relying on Hongwei Guan v EZC Carolinas, LLC, the court held the 2008 amendments applied because the record did not show any vested 10-year period before enactment. This mattered most for “claim of right,” which is now defined as a “reasonable basis for the belief that the property belongs to the adverse possessor” (RPAPL 501[3]).

2) In a blood-relative dispute, the court demanded a clear “repudiation” event to establish hostility.
Under Rundberg v Rundberg, hostility is not presumed in family contexts. The court treated the initial warehouse use (1963) as permissive—“presumably with the grandfather’s permission”—and invoked Hinkley v State of New York to presume that permission continued.

3) The repudiation that started the clock was the 2005 recorded deed reservation of “exclusive” use.
The court identified a concrete, externally verifiable act: in 2005, defendants’ predecessor recorded a deed conveying the eastern parcel to defendants while reserving to himself “the exclusive right and privilege to use the warehouse and surrounding clear grounds” for life. That reservation was inconsistent with plaintiff’s deed-based ownership and therefore “manifested for the first time a right hostile to plaintiff,” giving rise to a cause of action in ejectment (citing RPAPL 631 and Brand v Prince). From that point, the 10-year period ran to 2015.

4) “Claim of right” was satisfied by objective evidence of a reasonable boundary belief (tax maps and shared understanding).
Defendants offered decades of tax maps depicting Shunpike Road as the boundary and placing the disputed area on the eastern parcel. They added affidavits reflecting an understanding that the grandfather intended that result. The court held this met RPAPL 501(3)’s “reasonable basis” definition. Importantly, the court reasoned that even if the belief became unreasonable after the 2019 survey, it was too late because title had already vested by 2015.

5) Open and notorious possession was shown through recorded instruments and conspicuous use.
The court highlighted the recorded deed, frequent and regular use of the warehouse (woodworking and car repairs multiple days per week), parking on the cleared grounds, hosting visitors, and later repairs, painting, leasing to tenants, and land tending/leasing by defendants. Defendants’ attempted subdivision and sale—appearance before the Town Planning Board and a “For Sale” sign visible from plaintiff’s residence—were particularly strong notice facts under RPAPL 512(1) and 522(1).

6) Plaintiff failed to raise a triable issue.
Plaintiff’s affidavits asserted she “always knew” she owned the area and that defendants’ use was “with her permission,” but she did not produce evidence that between 2005 and 2015 she attempted to eject them or that they acknowledged lacking a claim of right (a deficiency framed through Rundberg v Rundberg). Nor did limited shared use defeat exclusivity given the post-business history and the nature of defendants’ predecessor’s “exclusive” assertion (drawing on Levy v Kurpil and Estate of Becker v Murtagh).

C. Impact

• Repudiation can be documentary, not just behavioral: A recorded deed provision claiming “exclusive” rights can supply the clear repudiation needed to convert permissive familial use into hostile possession and start the limitations clock.
• Post-2008 “claim of right” is proof-sensitive but can be satisfied by mapping and shared boundary understanding: Tax maps and longstanding practical boundary beliefs can establish a “reasonable basis” under RPAPL 501(3), especially where the prescriptive period matures before contrary survey evidence emerges.
• Notice is strengthened by public-facing acts: Leasing, repairs, subdivision applications, and conspicuous “For Sale” signage are potent “open and notorious” indicators under RPAPL 512(1) and 522(1).
• Family disputes remain distinct: Because hostility is not presumed between blood relatives, parties should expect courts to search for a concrete break from permission—making recordable and date-certain events unusually important.

4. Complex Concepts Simplified

• RPAPL article 15 (quiet title): A lawsuit to determine who owns property and to “quiet” competing claims.
• Adverse possession (RPAPL article 5): A method of acquiring title by possessing land in a manner that is hostile/under claim of right, actual, open and notorious, exclusive, and continuous for 10 years.
• “Hostile” possession: Not personal animosity—rather, possession inconsistent with the true owner’s rights. In family settings, courts do not assume hostility; they require a clear repudiation of permission.
• Permissive use and “repudiation”: If use starts with permission, the law presumes it stays permissive until the user clearly renounces that permission and asserts an adverse right.
• “Claim of right” (RPAPL 501[3]): A “reasonable basis” to believe the property is yours; it focuses on objective reasonableness, not merely subjective insistence.
• Life estate and remainder: A life estate grants possession for life; a remainder is the future ownership interest that becomes possessory when the life estate ends. Here, layered life estates and later deeds mattered to understanding who could possess and when.
• Ejectment (RPAPL 631): A claim to remove someone wrongfully occupying property; the court treated the 2005 recorded “exclusive” reservation as creating an ejectment-triggering hostile claim.

5. Conclusion

Gordon v Rich clarifies how adverse possession can mature in a family-property setting under the post-2008 RPAPL framework: permissive use among relatives does not become hostile by implication; it becomes hostile upon a clear repudiation—here, a recorded deed reserving “exclusive” use. The decision also illustrates how “claim of right” may be proven through objective boundary indicia such as tax maps and longstanding understandings, and how public, outward-facing conduct (leasing, repairs, subdivision attempts, sale signage) can decisively establish open and notorious possession. Practically, the case elevates the importance of recordable events and timely enforcement actions in intra-family land use arrangements.