LawRefs Customized Legal Information
Attorney Renee C. Walsh

Adverse Possession

Adverse possession regards rights in the land of another. Acquiring property by adverse possession is analogous to acquiring an easement by prescription. To acquire a prescriptive easement, the use must be:

  • open and notorious,
  • adverse and under claim of right, and
  • continuous and uninterrupted for the statutory period.

To acquire property by adverse possession, the elements are the same except with adverse possession, there is the additional element of:

  • exclusivity of use.

If the elements are met and the statute of limitations has run, title to the property will vest in the possessor.

Watch out for the deadline.  If the true owner files suit before the 15 year period of limitations runs, even if the limitations period runs before the suit proceeds to judgment, the judgment will relate back to the time the complaint was filed. The true owner must bring an action before the 15 year period (if tax deed, 10 years; if court decree or deed of ministerial officer, 5 years) or title will vest in the possessor. The statute of limitations does not run against government owned land.

Elements defined:  

  • Open and notorious = sufficiently apparent to put the true owner on notice that a trespass is occurring
  • Actual and exclusive = actual occupation not shared with the true owner or the public
  • Continuous = the occupancy that the average owner would make; intermittent periods not usually sufficient; can tack on periods of adverse possession by predecessor
  • Adverse = hostile = without permission; if permissive, then trespasser must communicate that they are claiming hostility and the limitations period begins as to that element

If you think your neighbor is trespassing on your property and there could be an issue of adverse possession, keep the relationship amicable, consider using the property to destroy the element of exclusivity and expressing that their use is permissive. If you are not agreeable to their use, consider conveying that to them, putting up a fence, and preparing yourself for litigation, beginning your suit well before the 15 year period ends.

Discussion:

  1. My parents own an approx. one acre lot, with the neighbor’s adjoining lot being substantially similar, both essentially split across the middle by a 60+ foot high hill. My parents’ house is situated on the top of the hill, the neighbor’s on the bottom of the hill and his house access does not cross the upper part of his lot. Since before the house was built, approx. 30 years and several owners ago, my parents have maintained, improved, and used the upper portion of the adjoining lot as they saw fit, usually without seeking permission from the lot’s owner. They have cleared, landscaped, sodded, seeded, watered it; use a portion of it for brush disposal; have planted vegetable and flower gardens; and variously used it for parking, storage, and parties. Family, friends, and neighbors commonly refer to this upper portion of the adjoining lot as being my parents’ “side yard”. The current lot owner, after several years of either rentals or vacancy in the house, has put the full lot up for sale. Do my parent’s have a valid adverse-possession claim to the upper portion of the lot, and what should they do to secure it?

    • Dear Justin:

      A red flag went up at the mention of “usually without seeking permission” as this implies that there were times when permission was sought and given. In any event, a person can claim property by adverse possession and if the elements are met and limitations period has run, the person claiming the property may show ownership in any way they desire. For example, they may consider putting up a fence. They may also file an action to correct the plat through the Land Division Act. If any lawsuit is filed, then accordingly, a Notice of Lis Pendens should be filed.

      Furthermore, as buyers are looking at the property, some type of notice of the interest at issue should be provided. If I were counseling a client (and I am not herein as I am merely providing information), we might discuss a letter to the neighboring owner notifying them of the claim of ownership along with a notice of interest in the property appropriately sworn and filed at the local Register of Deeds office. (Usually the office will have a Schedule of Fees for Recording Documents and this will also list Recording Requirements for documents to be filed there.) This way, the surveyor, realtor, banker, potential buyer, etc. are on notice of the interest. If the claim of adverse possession is lost and the true owner is caused to have damages, it is likely that he will seek those from the loser.

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