Realty Times August 30, 2002

When Is Your Land No Longer Your Land?
by M. Anthony Carr

Homeownership is the American Dream. But did you know you can lose your land to squatters in this great country? (Now you see why in the old westerns, squatters were treated badly.) A reader and homeowner from Sammamish,WA, writes:

"There is a one-year-old dispute going on over a fence that has been in its current location for 18 years which is encroaching a few feet (approximately 1,200 sq.ft.) into the common area. (This is not my fence). . .The past Boards and Architectural Committee have had complete knowledge of this encroachment for the past 18 years and have never said anything.

"Last year the Board decided to request the fence, sprinklers, and play-toy (encroachments) be removed from the common land. The homeowner has claimed adverse possession at this point, but the homeowner is most interested in a settlement which will permit them to continue using the land and pass it on when they sell in exchange for relinquishing their rights to claim adverse possession."

The note goes on to say that several other homeowners are encroaching on the common area as well, but that the Board is not asking them to remove their property.

Boy, talk about a lawyer’s dream, these folks are going to spend a lot of money to figure this one out. Why? Because, adverse possession is based on a "traditional common law which provided a method for someone to obtain title to land through use," according to the definition on adverse possession from www.FreeAdvice.com, a legal web site prepared by top attorneys at over 25 leading American law firms. "The common law rules for adverse possession have been codified under both federal and state statutes. A typical statute allows a person to get title to land from the actual owner simply by using the land, out in the open for all to see," the site reports.

For example, if a neighbor builds a garage and starts using a portion of your land as a driveway, with intention of using the land as his own, and then pays the property taxes, he could take title to the land as long as you are aware of his use of the land, he has paid property tax on the land and the encroachment continues for a set period of time (determined by the state). There are several elements needed for adverse possession to result in title, according to FreeAdvice.com:

  • The length of time could be as short as a few years or could run for 20 years or more. Some states have adopted a rule which requires the adverse possessor to pay taxes each year on the land.

  • The possession must be open for all to see.

  • The possession must be exclusive to him or her (e.g., building a fence or other structure on the property or the driveway in the above example, etc.)

  • The possession must be hostile to the actual owner of the land.

    Now"hostile" doesn’t mean the "trespasser barricades himself on the land with a shotgun," according to attorney Cora Jordan, writing in 'Neighbor Law: Fences, Trees, Boundaries and Noise', 1994 Nolo Press. (This piece was located at http://www.lectlaw.com/files/lat06.htm.)

    "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. 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. The other popular definition, the "Connecticut rule," defines hostile simply as occupation of the land. 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."

  • To gain title to land through adverse possession requires strict compliance with the law, but can have dramatic impact upon land ownership rights. 6 - An encroachment could result in title to your property being transferred to an adverse possessor. Under these circumstances, you might have to bring a lawsuit for trespass in order to prevent your neighbor from getting title to your land through adverse possession.

    If you own land that others have access to, be advised to be an active owner and know what’s happening on your land – you could lose it.


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