Four elements must be proved to establish adverse possession


A reader wants to know about the guidelines for establishing adverse possession to land.

He purchased a residential building lot in 1978. A survey revealed that a neighbor's driveway ran through a corner of the property and a 5-foot-diameter brick flower bed extended onto the reader's land. The reader says the neighbor acknowledged the encroachments and was given oral permission for the driveway and flower bed to remain.

In 1986, our reader says, he orally agreed that the neighbor could plant some flowers on the reader's side of the property line.

Trouble started in 1998 after our reader sold the lot to his son and daughter-in-law, who built a house on the property. They had some issues with the neighbor. The reader's son erected a fence along the common property boundary, and when the neighbor refused to remove the encroaching portion of the flower bed, the reader and his son dismantled it.

Our reader is concerned about losing a portion of the property based on the neighbor's claim of adverse possession.

Dear reader:

Adverse possession is a method of acquiring title to privately owned land by possession for a continuous period of 20 years, provided certain conditions are met. The possession of land must be open and notorious, exclusive, hostile and under claim of ownership and uninterrupted. All of these elements must exist.

Adverse possession does not apply where land is occupied with the consent of the owner or where the period of possession is not continuous. The 20-year period of adverse possession may be satisfied by tacking the time of possession by various people. The 20-year time period continues to run even though the actual ownership of the land changes.

For the neighbor to establish title to any part of our reader's land, that neighbor must prove all four elements:

Open and notorious possession of land: The neighbor must openly and visibly occupy the land so as to give the true owners knowledge that the neighbor's possession is adverse or under a claim of right.

Exclusive possession of land: The land must be occupied exclusively by the neighbor and not by anyone else.

Hostile possession of land: The neighbor must occupy the land without recognizing the real owners' rights.

Possession for 20 years: The neighbor or his predecessors must have possessed the land continuously for 20 years.

The flower beds installed in 1986 have not existed for 20 years. So there can be no claim of adverse possession at this time. The reader should insist that the flower bed be removed, and if it is not, the reader and his family should reassert their possession by removing the bed, erecting a fence along their property line, or by taking similar steps to possess the land.

The neighbor's driveway and brick flower bed predated the reader's purchase of the land in 1978. The driveway and brick flower bed have existed openly and notoriously for more than 20 years. According to our reader, the neighbor's use and possession of the driveway and brick flower bed has not been hostile. On the contrary, the reader says that there was an express oral agreement with the neighbor whereby the neighbor acknowledged the property line and that the improvements were on the reader's land with his permission. A permissive use and possession of land is not hostile and does not meet one of the essential requirements for adverse possession.

Since the arrangement for use of the land was never reduced to writing, the neighbor may claim that he has always used the property without permission. To protect himself, the reader should require the neighbor to sign a written document, acknowledging that the driveway and brick flower bed occupy a portion of the reader's land under a permissive license, which the reader has a right to withdraw or revoke at any time.

The document may be recorded in the county land records, so it will be notice to anyone who acquires the neighbor's property in the future.

If the neighbor will not sign a license agreement, the reader and his family should consult an attorney.

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