Prescriptive Easement by Adverse Possession

People have the right to keep unwanted intruders off their property. They do this all the time, sometimes with fences or with signs, sometimes just by asking trespassers to please stay away. In cases of serious, repeated annoyance or threatened harm, landowners can call the police. They will usually warn the person to stay away and, if necessary, make an arrest. Trespass is a minor criminal offense, and someone convicted of criminal trespass can be fined and jailed. Another kind of trespass is more permanent: using another’s property as an owner would use it. If someone drives across a neighbor’s land every day, it is a trespass unless the owner has granted permission or the driver has a legal right, called an easement, to use that part of the neighbor’s property (see “Easements,” below.) The other neighbor who just put up a fence two feet over the boundary line is trespassing, as is the one whose garage has been in the wrong place on the neighbor’s property for several years. These trespassers can also be asked to leave or warned away. But there’s a chance that any of them may in fact have a legal claim to the property.

 

ADVERSE POSSESSION
Many landowners are surprised to learn that under certain circumstances, a trespasser can come onto land, occupy it and gain legal ownership of it. The trespasser may acquire a few feet of property or whole acres in this way. If someone is using your property, even a small strip on the edge, you should be alert to the risk. A trespasser may also gain a legal right to use part of someone else’s property; this is called a prescriptive easement. (See “Easements,” below.) The legal doctrine that allows trespassers to become owners is called “adverse possession.” Although the name sounds nasty (and the results can be), the trespasser is not necessarily an intentional evildoer–far from it. The trespasser may simply have made a mistake–relying on a faulty property description in a deed, for example. In rural areas, the person who moves in and occupies several acres may believe he owned it, having purchased it from a scoundrel who sold someone else part of the Brooklyn Bridge. Questions about ownership often wind up in court after an absent owner of rural property discovers that someone is living on his land or, when a piece of urban property is sold, a title insurance company refuses to issue insurance because the neighbor’s garage is found to be standing squarely on the property. If the people involved can’t work something out, the property owner may sue the trespasser, or the trespasser may bring a lawsuit to quiet title–a request for the court to settle who owns what.

 

REQUIREMENTS FOR OBTAINING LAND BY ADVERSE POSSESSION
A trespasser is entitled to legal ownership of property if his occupation of the property is hostile, actual, open and notorious, exclusive and continuous for a period of years set by state statute. (We explain each of these terms below.) Some states, such as California, also require the trespasser to have paid the local property taxes on the land.(1) The time required, which varies from state to state, is usually twenty years. It can be as short as five years when the trespasser pays the property taxes.

 

HOSTILE CLAIM
The word “hostile” does not mean that the trespasser barricades himself on the land with a shotgun. Most courts follow one of two legal definitions of hostile. One is called the “Maine rule” and requires that the person be aware that he is trespassing.(2) For example, a man in Nebraska, a state which follows this rule, gained ownership of the neighboring eight acres by using them for years. He knew the property was not his, and a court characterized his action as hostile.(3) The other popular definition, the “Connecticut rule,” defines hostile simply as occupation of the land.(4) The trespasser doesn’t have to know that the land belongs to someone else. The Connecticut rule, kinder to the innocent trespasser, is followed by most states today.(5) Example: Jesse isn’t sure where his property line is, but he thinks an old fence marks the boundary. When he builds his new garage, he builds up to the fence line, which is actually ten feet over on his neighbor’s property. Under the Connecticut rule, Jesse’s intention doesn’t matter, and his occupation is hostile even though he thinks he is on his own land. A few states follow a third rule, which is directly opposite the Maine rule of requiring intentional trespass. The trespasser must be completely innocent and must have made a good faith mistake, such as relying on an invalid or incorrect deed. For example, in Iowa, which follows this good faith rule, a woman attempted to claim a strip of her neighbor’s land by adverse possession. The court denied her claim because she knew it was not her property, even though she had treated the property as her own for thirty years.(6) The chart below lists how each state has interpreted the requirement of hostile claim.

(1) Cal. Civ. Proc. Code Section 749.
(2) Preble v. Maine Cent. R.R., 85 Me. 260, 27 A. 149 (1893).
(3) Pettis v. Lozier, 205 Neb. 802, 290 N.W.2d 215 (1980).
(4) French v. Pierce, 8 Conn. 439 (1831).
(5) Helmholz, Adverse Possession and Subjective Intent, 61 Wash. U.L.Q. 331, at 339 (1983).
(6) Carpenter v. Ruperto, 315 N.W.2d 782 (Iowa 1982).

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