What Does a Boundary Line Dispute Really Amount To? Adverse Possession and the Intentional Infliction of Emotional Distress In New York

Boundary Line disputes often turn nasty. Two neighbors who live next to each other for years suddenly discover that the fence they each thought was on one property actually is on the other’s land. The titled owner often will sue to quiet title; i.e., to have a court declare that the disputed land still belongs to her, and, possibly, for trespass against the neighbor to clear him off it. The neighbor, on the other hand, will assert that he has obtained title to the property through adverse possession. In other words, there’s a fight, between one person who says the land is hers because she bought and paid for it, and the other, who says it’s his because he always used it like he owned it. Even without more, and there always is more, this is a recipe for disaster, which often leads to allegations that one side has intentionally made the other’s life a living nightmare. Even after the court determines who really owns the land, it’s not uncommon for one party to sue the other for the intentional infliction of emotional distress.

Boundary line disputes are more common than you might think. States even get into them. Recently, the boundary between North Carolina and South Carolina has been recalculated or at least clarified. Homes and businesses, which thought they were in one state have found out that they are in the other. The boundary originally was set hundreds of years ago, by surveyors who used rudimentary tools including stone markers and markings on trees. Over time things got fuzzy; the trees died and the stones became overgrown with moss. The modern day surveyors often had to peel moss off stones and search land grant records but, now that they have re-set the line, the boundary is marked in high-tech GPS coordinates. Importantly, the states reportedly worked together to get the job done and soften the blow to the affected property owners. Not all boundary disputes, however, foster such a spirit of cooperation.

The whole concept of adverse possession breeds contempt between neighbors. In New York, there’s a five part test you have to meet in order to gain title to land through adverse possession. Chances are, neighbors won’t stay friends once they are done fighting it out. As we talked about previously, your occupation of the property must be:

(1) Hostile and under a claim of right, which really amounts to your belief that the property actually does belong to you rather than anyone else and you treat it as you would your own;

(2) Actual;

(3) Open and notorious;

(4) Exclusive; and

(5) Continuous for at least 10 years.

See Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81, 968 N.E.2d 433, 437 (NY 2012).

Think about how hard it is to stay civil with someone who’s trying to take your land. Then realize that both sides believe the disputed land is theirs. Then remember that no matter what else happens, both sides still have to live next to each for years to come, unless one decides to sell, which itself often is traumatic. What comes to mind is trying to put a grease fire out with a bucket of water; it’s a pretty sure bet that the only thing you’ll do is spread the damage.

It’s not uncommon for the bad blood between neighbors to spill over; even after one side wins and the other loses the disputed land, there will be allegations and recriminations on both sides. The years of dispute often will turn into a follow up lawsuit alleging that one side has intentionally inflicted emotional distress upon the other; through its actions in trying to get or keep the land; the names and the taunts it has directed at the other side; through its constant, vigilant harassment.

What everyone should remember is that a cause of action for intentional infliction of emotional distress is easier to allege than to prove. In New York, you have to establish:

1. Extreme and outrageous conduct;

2. Intent to cause or disregard of a substantial probability of causing severe emotional distress;

3. A causal connection between the conduct and injury; and

4. Severe emotional distress.

See Howell v New York Post Co., Inc., 81 NY2d 115, 596 NYS2d 350, 612 NE2d 699 (NY 1993).

Perhaps the hardest thing to do is to establish that the person you are complaining about acted outrageously enough; and that’s been done on purpose. The courts have used the outrageous conduct requirement to filter out the maybe-not-so-bad cases, to ensure that only the truly nightmarish ones make it through. See Howell v New York Post Co., Inc., supra. There are a litany of cases which demonstrate what conduct is, and is not, sufficiently outrageous to maintain such a cause of action. For right now, it should be enough to know that even suing someone, just to intimidate and harass him, is not outrageous enough. See Walentas v. Johnes, 257 A.D.2d 352, 353, 683 N.Y.S.2d 56, 58 (1st Dept. 1999). It says a lot when siccing a lawyer on someone for no good reason isn’t considered sufficiently outrageous conduct.

Maybe it’s not such a bad thing to set the bar high for claims of intentional infliction of emotional distress. Though people’s feelings get hurt, especially when someone tries to take their land, that probably should not be enough to collect for the intentional infliction of emotional distress, especially when the court decides the land’s true owner. Even a rough and tumble fight, like one over a disputed boundary line, should come to an end sometime. The intentional infliction of emotional distress should be left to resolve the true nightmares, not merely the bad dreams. Maybe, before people fight so long and hard over boundary line disputes and claims of adverse possession, they should remember that they are and will remain neighbors for the foreseeable future. That will do more to prevent nightmares than the threat of a lawsuit ever will.

Ray Grasing