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Understanding - And Avoiding - Adverse Possession

Written by on Sunday, 06 April 2003 7:00 pm

Q.I recently had the four corners of my land staked by a surveyor. In so doing, I noticed that my neighbor's shed which is on a concrete slab is about 8-10 inches on my property. A hedge divides my land from theirs in the back yard, although the neighbor pulled out half of the hedge and uses the 8-10 inch strip for the shed and for planting. What is the law? I would like to keep peace with the neighbors. I did tell them that they are on my land. The indicated that they thought the hedge belonged to them but were terribly sorry after they found out it wasn't their property. However, our neighbor still plants on the strip. We would appreciate the simplest solution of all possibilities that might be available.

A. There is an ancient legal concept in the law known as "adverse possession." If we go back to our history books, this is also known as "squatters rights."

The theory of the doctrine of adverse possession is that the person who holds or uses property adversely against the rightful owner should ultimately be entitled to own that property. But not every possession of land will turn into fee simple ownership. As the name of the doctrine implies, the possession must be adverse, hostile, actual, notorious, exclusive, continuous and under claim of right.

Needless to say, these sound like highly complex legal concepts, and to some extent they are. However, in the words of one judge, "the person claiming the property by adverse possession must unfurl his flag on the land and keep it flying so that the owner may see, if he wishes, that an enemy has invaded his domain and planted the flag of conquest."

Thus, the person claiming by adverse possession must do something to alert the true owner that a stranger has taken occupancy.

Turning to your specific question, you did not indicate where you live. Although the concepts -- the legal principles – of adverse possession are the same throughout this County, State laws vary on the number of years that have to pass before adverse possession will apply. In the District of Columbia, for example, the law is that a person obtains a valid title to land if the adverse possession is for a period of 15 years.. In Virginia, the period of adversity is also 15 years, while in Maryland the law requires 20 years for a successful claim. Although you have advised me that your neighbors purchased the property about 10 years ago, you did not state when the shed was installed.

Under the doctrine of adverse possession, the courts permit subsequent owners to obtain the benefits of the doctrine, if the requisite time period has been continuous and hostile -- regardless of who owns your property. Thus, even though your neighbor has owned the property less than the requisite time requirements, it is the number of years that the shed has been installed that is critical. In other words, when your neighbors purchased the house, they would be able to pick up the benefits of the potential adverse possession claim from their predecessor. This is called "tacking." Accordingly, if and when your neighbors decide to sell the property, I strongly recommend that you insist that the shed be torn down.

Keep in mind that the burden of proof is on the claimant -- your neighbors -- to meet the test for adverse possession. In order to actually get title to the land in question, your neighbors will have to file a complaint in court in what is known as "an action for quiet title." Needless to say, this is both time-consuming and expensive, and your neighbors may not be inclined to go ahead with this action.

To answer your specific question, you can avoid your neighbor's successful claim of adverse possession by removing one of the legal elements required for this claim -- namely adversity.

You have indicated that you have already discussed this with your neighbors. I would suggest that you send them a letter, certified, return receipt requested, stating that you recognize that the shed is on your land and for a limited period of time you are going to permit them to keep the shed on your property.

According to one judge, "If the use by me of my neighbor's land is, on its face, permitted by my neighbor as a matter of neighborly accommodation, the use is not adverse or hostile."

Put a copy of the letter and the return receipt among your valuable papers, and periodically -- perhaps every five years -- renew this permission to your neighbors.

And don't forget to inform your buyers of this arrangement if you ever sell your house.

There is another way to resolve this matter. You can either sell the strip of land to your neighbors or grant them an easement to use your land. An easement is a written document, which must be recorded among the land records where your property is located. Obviously, under either of these approaches, you will lose the use of the land, but you will have amicably resolved the problem once and for all.

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  About the author, Benny L. Kass

Individual news stories are based upon the opinions of the writer and does not reflect the opinion of Realty Times.