Wednesday, May 26, 2010

Adverse Possession

All of the emails sent from the link on come directly to me. Many of them are inquiries by homeowners with property law questions. While I cannot provide any legal advice, I do feel obliged to give some general background information on the area of law involved, always with the caveat that the person should consult with his or her own lawyer. The other day, someone asked the following:

I am wondering what my neighbor would have to do to file an adverse possession claim on a strip of land on my side of our common property border. He continues to mow the 6-10 foot strip and treat it as his own. Am I at risk of losing this land and having to re-write my deed?

Here's my response:

Your situation is very common, but it really calls for legal advice that is specific to the particular circumstances of your case. For that reason, you should consult your own attorney about the situation.

Generally, it is not the person who is wrongfully possessing the property that begins any legal action. Instead, it is the person whose property is being wrongfully possessed who would file an action claiming trespass. The possessor would then offer an affirmative defense, claiming he had become the legal owner of the property through adverse possession. The main issue is how long has the neighbor and his predecessors used the land as their own. Adverse possession occurs after 20 years of uninterrupted use that is adverse or hostile to the original owner's possession of the property. That means that if the person is using the land with permission, it's not adverse and does not transfer ownership to the user. An attorney might advise you to have the property surveyed and the actual boundary clearly marked. Then, if the neighbor does not agree to that as the boundary, the attorney might send a formal notice to the neighbor, either demanding that he stop using it or telling him that he's using it only with your permission. That would stop the 20 year clock from running. In the long run, however, it's probably wisest to get it cleared up because when the time comes for you to sell the property, having an ongoing boundary dispute might jeopardize your sale. Remember, all of the above is just my general observations about these types of cases and is in no way legal advice to you - for that you need your own attorney.

No comments: