Adverse Possession

Have you ever heard about someone that bought a piece of real estate, only to find out that a part of what they bought was actually owned by their neighbor (or someone else) because of the fact that the neighbor used the area of land for a period of years? Ever wonder how such a thing could happen? Adverse Possession may just be the answer to this question.

Traditionally, the law recognized that a person could acquire another individual’s real estate if he or she uses the property for an extended period of time, while putting the actual property owner on notice of the use, and provided that the actual owner of the land in question has not granted permission for the use of their land in question. This was the longstanding common law principle of Adverse Possession. The classic justification for this principle is that land should not go to waste. In other words, if the person who is claiming to have adversely possessed the land of another is putting this land to use for a long period of time, and the true owner of the land was not otherwise utilizing the property, the person actually putting the property to use should become the owner. Unfortunately, this justification certainly may not satisfy you, and indeed, many believe that a true owner of real estate should always remain the true owner regardless of their actual use of the property. Nonetheless, the principle of Adverse Possession is here to stay.

Adverse Possession typically arises, though not always, when two property owners share a common boundary and one of the property owners uses the land of the other for an extended period of time. Here are some typical examples of Adverse Possession claims:

Example #1: Imagine that there are two neighboring lots, Lot A and Lot B, each with lakeshore frontage on Big Lake. Lots A and B share a common boundary running from a roadway straight down to the lakeshore. You happen to own Lot A, while your neighbor, Brian, owns Lot B. You also regularly install and use a dock and boat hoist extending out from the lakeshore into the lake, and Brian does the same. As it turns out, however, the location that you chose to install your dock system on each year just so happens to be 10 feet onto Brian’s property. You continue this practice for the next 20 years, always installing your dock system in the same location. Interestingly, Brian knows that you are installing the dock on his property, and he certainly never gives you permission to install your dock system on his property. Curiously, Brian never asks you to remove your dock system from his property, nor does he actually do anything to remove you or your dock system from his property. In such a situation, you may well be able to claim ownership over the 10 foot strip of land that you have been using for your dock system by reason of Adverse Possession.

Example #2: In this example, you purchase a piece of land from a woman named Amy in January of 2012. Amy owned the property for 20 years prior to selling the land to you. After closing on the sale, you take a trip out to the property, survey in hand, to take a look at your new investment. As you review the survey and walk about the property, you quickly realize that your neighbor Mary has built a large barn near the border of your two properties. Upon closer examination, it appears that Mary’s barn extends some 15 feet onto your property. After talking with Amy, Mary, and other neighbors, you learn that the barn was built there in 1995, some 17 years ago. Undeterred, you approach Mary, tell her that you have learned her barn is encroaching onto your land, and you ask her kindly to move or remove the barn from your property. In this situation, Mary may well refuse to move her barn, and will likely have a claim under Adverse Possession that she is now the owner of the land on which the barn sits.

Example #3: In this situation, you and your neighbor John each buy lots next door to one another in 1990. John builds a home on his lot, while you use your lot to grow soybeans. In 2006, 16 years later, John decides to have his property surveyed. When his new survey is completed, John reviews it only to find out that you have actually been planting and harvesting soybeans on a 20 foot stretch of his property that runs the whole length of your common border. The next spring, John sits down with you, shows you the survey and where you have encroached onto his land with your planting, and he asks you not to plant on his property anymore. Unfortunately for John, you may have acquired the entire 20 foot strip of land from John through Adverse Possession.

Generally speaking, Adverse Possession takes place (i.e. ownership of the land possessed transfers from the true owner to the adverse possessor) immediately upon the fulfillment of certain required elements for a minimum of 15 years. Techinically, there is no need to go to court in order to take someone else’s property through Adverse Possession, you simply get it automatically upon fulfillment of each of the requirements. Regardless, it is still highly advisable that an individual claiming ownership of property through Adverse Possession seek qualified legal representation in quieting title to the property, a legal proceeding which establishes an individual’s ownership interest in a piece of property.

Adverse Possession always involves the taking of land from the true owner and giving it to another, the adverse possessor, because that individual has actually used the property in question, and has done so for an extended period of time. Often, public perception about Adverse Possession paints a picture that it occurs frequently, that it is tantamount to theft, and that you must be careful for fear that it may happen to you. In reality, however, acquiring property through Adverse Possession is far more difficult than it sounds, and when it does occur, there is rarely a noticeable difference in ownership when compared to how the parties involved were actually using, or not using, the land in question.

For further and more in depth information about Adverse Possession, please check out the links below, where we discuss in further detail the various requirements in any claim for
Adverse Possession, as well as several notable limitations or exceptions to the general requirements of Adverse Possession.



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