Adverse Possession: When Your Property Becomes Your Neighbor’s Without Your Consent
September 28th, 2023
Contributor: Emily L. Brough
Property line disputes can occur between neighbors. But what happens when your neighbor is aware of a boundary line, but nonetheless encroaches upon or improves your property on purpose? In certain circumstances, it can result in your neighbor taking title to the portion of property at issue, under the doctrine of adverse possession. Taking title through adverse possession is not easy, but if certain statutory criteria are met, is possible—so don’t ignore that annoying encroachment for too long.
A Guide to Adverse Possession
Adverse possession is a legal concept that allows a person to gain ownership over someone else’s real property without their consent. First, the adverse possessor must use and occupy the owner’s property openly. While this means that the owner must have notice of the occupation, this does not necessarily mean actual notice; if the occupation constitutes “reasonable” notice, the owner is presumed to have knowledge of the possession. For example, let’s say your neighbor builds a deck that clearly encroaches over your property line by six inches. Your neighbor does not need to knock on your door and inform you of the encroachment for you to be put on “notice.” The fact that the deck was built over a known boundary line is sufficient.
The adverse possessor’s use of the owner’s property must also be continuous, and for at least a five-year period. With the above example, this means that the deck remains on your property throughout this period of time. On the other hand, if your neighbor occasionally places a garbage can on your property in the same spot for five years, the use is not “continuous,” and this factor is unlikely to be met. However, the required continuity depends on the nature of the property and the use at hand. If for example, the property is only available for a certain use seasonally (e.g., land for cattle grazing), then a temporary absence from the use of that property during the off-season will not defeat a claim that the use was not continuous.
Next, the use of the property must be exclusive to the possessor, i.e. the owner cannot also use the portion of the property at issue, and that exclusive use must be hostile or adverse to the owner. There doesn’t need to be an actual dispute about the encroachment or trespass, but the exclusive use must be without the owner’s permission or consent. The adverse possessor does not ask; she takes.
Perhaps the most difficult element of adverse possession to meet is payment of taxes on the portion of property encroached upon, or proof that no taxes were levied on the property during the possession. Meeting this last element generally requires verification through local, state, and federal tax authorities.
Finally, whether a property has been adversely possessed or not can generally only be determined through court action. While acquiring ownership via adverse possession is not a simple process, if you suspect it could be occurring on your property, it is crucial to take immediate steps to prevent it, given the potentially serious consequences.
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Categories: Real Estate Litigation