What is Adverse Possession?
“No…. it’s mine”!!
Adverse possession is an involuntary transfer of land governed by whatever state the land is located in. It is an operation of law that has certain statutory requirements to qualify. The actual transfer of title can be secured through a suit to quiet title in certain jurisdictions.
I tend to view adverse possession two ways. I feel better about it if a property line has been unintentionally crossed but used for years by the adjoining landowner. However, I am philosophically against the intentional crossing of the property line of another person for the purpose of taking property. No matter what I think the law doesn’t care, so let’s take a closer look at the process and how to prevent it.
Background
Real estate law in America is based on English Common Law. This goes a long way back to when kings first allowed their subjects to own land as freehold estates. This isn’t a history lesson, but it is important to note that way back then, a key concept of granting the right of ownership was to encourage actual use. An example would be taking an unused portion land and cultivating it with a crop, thus making the land productive. Most land developers would argue that no one encourages land use today as it relates to development, but no matter, the underlying concept remains. That concept is: “if you aren’t going to use it, let somebody else”. Over time laws came into effect to allow this kind of title transfer in favor of the user and to the disadvantage of the non-user. Enter - Adverse Possession.
P.O.A.C.H.
Some of you know that I had no prior experience or mentoring when I started in land development 25 years ago, so early on I decided to take the real estate licensing course in my state. I figured that the land development real-world school of hard knocks might be easier and softer if I had a basic understanding of the subject. I was wrong about the easier and softer way, but I am glad I took the courses anyhow.
There was a great instructor named Judy who really knew her stuff and how to deliver it. She was very knowledgeable from years as an agent and had a great classroom style. When it came to adverse possession which she jokingly called “poaching”, she developed and used an acronym for outlining the requirements in the state that we were in:
P - possession
O - open
A - actual
C - continuous
H - hostile
Possession:
Taking control of another’s property.
Open:
The possession is not concealed.
Actual:
The taking factually exists.
Continuous:
Uninterrupted for a certain defined time period
Hostile:
An opposing interest.
Without meeting all of the P.O.A.C.H. requirements an encroachment is really just trespassing. For example, a temporary encroachment like crossing a neighbors fence and going back and forth repeatedly over the years does not meet the continuous possession requirements for adverse possession, even though it might for a prescriptive easement.
Responsibility
It is the responsibility of the property owner to protect his/her title rights for real property from adverse possession. In the real world this common-sense approach to property protection is frequently bypassed. A typical scenario is when neither owner realizes there is an encroachment…. until something happens.
Example
Fred owns 15 acres of undeveloped land. His neighbor Mary lives in a house to the east side of his property and has lived there since the beginning of time. She put up a detached garage a few years ago and everybody thought it was situated entirely on her property. Fred decides to sell out his land to a developer and during the inspection period the developer has the property surveyed. It is found that Mary’s garage is actually two feet over the surveyed property line onto Fred’s land. Having found out about this problem, the developer terminates the sale.
I’ve never known an easy way out of this kind of situation. Even though Mary may have constructed the garage short of the statutory time required for her to perfect an adverse possession claim, Fred is faced with making her tear it down or move it to her side of the line. If Mary has met all the P.O.A.C.H. requirements, then further legal action is needed so that Fred has clear title to his remainder land. If either fail to act, then both Fred and Mary must disclose the known encroachment for any future sale. Meanwhile Mary’s garage sits on Fred’s property getting closer and closer to full entitlement for an adverse possession claim, if it already isn’t.
How I prevent adverse possession
For years I developed land in an area of the country where there was dense forestation with thick understory. One good example was a 1,113 acre property of irregular shape that was tough to keep an eye on for possible encroachments. Also, the property was miles in circumference, had meandering wetlands at some of the boundaries and at least two dozen adjoining landowners with common boundaries.
Besides keeping an eye on what neighbor was pulling permits for construction and then checking on their construction activities, I relied on aerial photography to keep an eye on things. The satellite images were time and date stamped so there was documentation of changes over time. Since this project was in the late ‘90’s and early 2000’s the only drone anyone had ever heard of was a male honey bee. Nowadays we have the advantage of drone photography. My drone photographer has given me boundary aerials of key locations on a 3,400 acre multiphase project in a little over 1 hour of flying time. Now that’s what I call progress.
Preventing encroachments that can lead to adverse possession
Once an adjoining property owner has impacted an area through encroachment it is a major pain to get it corrected. Even a fence requires a lot of tear out and damaged material. Just think if it is part of a building, road, or an underground waterline! It’s a recipe for prolonged and nasty conflict since the encroaching person will try to sweet talk first and go to war second in my experience.
I always know where my property corners are before acquisition and make sure I walk the entire perimeter for possible encroachments. After closing, I stake the corners and flag them, brush cut the entire perimeter if feasible and use flagging tape to mark my boundaries along the cut. I place “No Trespassing” signs that also cite any additional legally required language.
Sometimes I have held dirt for a long time, like with phased projects that can last for years. I keep a log of every time I walk the perimeter lines. If I see any possible or actual encroachment, I send a certified letter to the owner, return receipt requested. This cements my discovery and provides actual notice to the encroaching party that is documentable. I always contact them face-to-face as well.
Sample Trespass Letter
Date:
Name of Legal Owner
Address of Legal Owner taken from tax records
It has come to my attention that you have trespassed onto my property at ___________. Recently, I had three No Trespassing signs placed on existing fence posts indicating our common property line.
You must move your belongings back onto your side of the property line immediately. These items include a dog house, pick-up truck, trampoline frame, plywood ramps and other debris.
If these items are not moved within two weeks, I will be forced to take further action.
Your cooperation is greatly appreciated.
Sincerely,
My Name as Legal Owner or Representative
Clearing up encroachments that can lead to adverse possession
I don’t let encroachment problems fester because they never seem to fix themselves. Encroachments can lead to adverse possession as has been seen. If the encroachments are known, but not settled, they must be disclosed to prospective buyers by the seller, per applicable disclosure laws of the state. This kills sales.
If the requirements for adverse possession meet the statutory tests, I believe it is in the interest of both parties to legally resolve it. The “loser” gets to stop paying taxes on the land he no longer owns and obtain clear title going forward, while the “winner” also gets clear title and must pay the tax on the acquired land. It also clears up disclosure problems.
Or…better yet, I stay out of trouble in the first place by tending to my property.
