ADVERSE POSSESSION:
Have You Lost Your Land?
by
Attorney Steve Olson
For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP
Hypothetically, assume you own a home in the city. At some point, there was a survey done, setting forth the legal description for your property. The same is true for your neighbor. Some years ago, your neighbor built a new fence. Now, as part of an addition you plan to put on your home, you have your property surveyed. To your surprise, you find that your neighbor's fence is 3' onto your property. Whose fence is it? Even more importantly, who owns the 3' of your lot which is fenced off by your neighbor? Answer: it depends how long the fence has been there.
If your neighbor's fence has been in its current location more than twenty years and there were no written agreements such as a lease permitting the fence, the property has probably become your neighbor's by virtue of the doctrine of adverse possession. The general rule for adverse possession is if someone has openly exerted control over the property of another for more than 20 years, ownership of the property changes. However, the period can be less if certain conditions are met. For example, if your neighbor had a recorded survey which wrongly showed the 3' of your property being your neighbor's, then adverse possession can occur after 10 years. The statutory period for adverse possession is shorter if founded on a recorded, written document. Further, if your neighbor claims your property by adverse possession based upon a written document and has paid the property tax on the disputed property, then adverse possession can occur in as little as seven years.
Disputes about adverse possession arise in rural as well as municipal areas. In fact, given the larger size of properties involved, they are more common in rural settings. The larger the property owned by someone, the less likely they will be vigilant in inspecting their boundaries to make sure no one is encroaching on their property. This can be particularly a concern where residential properties abut agricultural land. If the rural property owner fences his yard, however, the fence extends into the agricultural land, and the farmer does not enforce his or her rights, ultimately the property will become the homeowner's. The same scenario can occur with an ill-defined property line, where the farmer extends agricultural operations onto the rural homeowner's property. Wherever the location, one must be vigilant in enforcing property boundaries.
For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP