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Expanding Floor Area Ratio for Development Sites through Adverse Possession 

by Peter M. Carrozzo, Esq. Cornerstone Land Abstract

Most developers know that the amount of FAR (Floor Area Ratio) on a potential lot is a determinative factor of the financial success of a project. As defined in the NYC Department  of City Planning Glossary of Zoning Terms, “FAR is the ratio of total building floor area to  the area of its zoning lot.” The size of your lot determines how much buildable floor area is  permitted in your building by the building department. New York City is broken down into  zoning districts that qualify as either Residence Districts, Commercial Districts or  Manufacturing Districts. These three districts are further broken down based on a  numerical code. So, Residence Districts can be numbered anywhere from R1 to R10 ranging  from low density areas (R1) to high density (R10). The district designation is determinative  of the amount of FAR allowable on your lot.  

For example, a FAR of 1.0 on a 50 by 100 lot allows for 5,000.00 square feet of buildable  floor area for a project. If a project is two floors, then 2,500 square feet of buildable floor  area is allowed on each floor. Properties in suburban R1 districts usually have a FAR of  0.50. A 50 by 100 in an R1 with a FAR of 0.50 will allow for only 2,500.00 square feet of  total buildable floor area. Take that same 50 by 100 lot and place it in a Commercial  District, such as a C6 designation, with a FAR of 6, and your project allowance is 30,000  square feet of buildable floor area. The FAR of a property is significant in identifying  potential development projects and the return on investment. 

The NYC Department of Planning allows for developers to expand the FAR in a number of  ways. The Inclusionary Housing Program expands FAR for projects that carve out a portion  of dwelling units to be set aside for affordable housing; likewise adding a community  facility, such as a senior center to a building, will increase FAR. Sometimes, the  idiosyncrasies of a project can also lead to an expanded FAR. The ancient doctrine of  adverse possession could play a role in increasing the FAR of your project. 

Adverse possession is a legal concept dating back 1,000 years that allows a person who  controls and possesses land owned by someone else to acquire valid title to it if certain  requirements are met. These requirements include continuous (uninterrupted) possession,  hostile to the rightful owner, through active use of the area in question where ownership is  manifested in some overt way (e.g. a fence, cultivation of a garden, location of an air  conditioning unit), open usage for all to see and exclusion of any other possessors. The  adverse possessor must control the property continuously for a sufficient number of years.  (In New York, this period is generally 10 years). 

To show how adverse possession can frustrate development, a construction of a planned  hotel in Manhattan’s diamond district has been stalled for three years because a neighbor  has claimed possession of an 18-inch strip of land on the planned hotel’s site; specifically,  the adjacent property’s antennas, air conditioning units, and a ventilation unit overhang 

this strip. For our purposes, we are interested in how adverse possession can, in fact,  enhance development. 

During the due diligence phase of a project in lower Manhattan that we were insuring, our  research found a rectangular area at the rear of the premises was not described in the last  several deeds of record. Interestingly, said area (which was approximately 3 feet by 30  feet) was not described on any deeds of the contiguous lots either. Surveyors sometimes  identify this sort of area as a “gore” which is defined in Black’s Law Dictionary as “a small  piece of land such as may be left between surveys that do not close.” A gore is a “no man’s  land,” described on no neighboring deed and identified on no survey. Many times a gore  will be a triangular piece since it is created by property lines whose angles have  erroneously wandered over various deeds until the gore has been carved out through  inexact descriptions. The reasons behind this gore did not reveal themselves at first and  further inquiry was required. 

We looked back through the history of tax maps and deed descriptions on the block hoping to identify the last owner of the seemingly abandoned strip of land would be the current  owner, thus cementing the rightful ownership of the gore as part of the premises under  examination. Looking back to tax maps from the late nineteenth century and descriptions  as far back as the early nineteenth century, the gore was not shown as part of any of the  lots on the block. We found one early map that showed an alley in the center of the block  that seemed to have access to a public street at one time; the gore area behind the premises  was all that remained of that alley. This mysterious alley, that appeared on no documents since the nineteenth century, appeared to have no identifiable owner. Remarkably, this  orphaned 90 square foot area sat in southern Manhattan—one of the most expensive real  estate markets in the world.  

With no apparent legal owner of this strip of land, what was to become of it? One piece of  evidence helping to attach this area was inclusion of this strip of land on the tax map of the  premises in question. Frequently, when identifying ownership, an important question to  ask is who is paying the taxes? Since the strip of land was included as part of the premises,  owners of that lot had been paying real estate taxes on the land for decades. After asking  who is footing the bill on the land, the next question is who is using the land. Here, air  conditioning compressors were situated on the strip of land. Looking at the cables, it was  clear these units serviced the building located on the premises. Once the date of installation  was confirmed as being more than ten years ago, with no neighbors manifesting control  over the area and the usage by the current owners being open, the claim for adverse  possession of the strip was strengthened. Usually, adverse possession works against a  known owner of contiguous real property to allow a neighbor to claim superior ownership.  In this case, it worked to thwart off any other claimants, although no other owners  appeared to make a claim for the land.  

Of course, with millions of dollars invested in a project both in capital and building loans, it  may be uncomfortable to rely upon the concept of adverse possession in expanding the FAR. The facts revealed in the situation at hand establishes strong evidence that bringing  an action to quiet title would provide a favorable judicial determination of the ownership of 

the area. Such a determination can be relied upon to expand the size of the lot and the  corresponding FAR, thus increasing the profitability of the development site.  

Real estate is unique, and every project has its own quirks and challenges. Not every  potential development will have these distinct circumstances which lead to the increase of  buildable area through the capture of land lost to history. However, meticulous analysis of  a proposed project and outside the box thinking can allow a diligent developer to expand  the potential FAR of a development site through this ancient real property concept.