By Beau Ruff
Your property can be taken from you even though you have ostensibly done nothing wrong. You have paid your bills, you are current on your taxes, and you have exercised customary precautions in the acquisition and ownership of your property. Whether you like it or not, whether it’s fair or not, the law allows a person to be divested from his or her ownership in real property through a legal concept called adverse possession.
Conversely, the law
also allows a person to gain ownership of another’s real property through the
same legal concept.
In the abstract, it
is almost unthinkable that this should be allowed. How can a person simply take
ownership of your property? An example helps to illustrate the legal concept
and its application.
Let’s assume that Kim
and Khloe each buy a lot in a new housing development. The lots are adjacent to
each other. Each walk the advertised quarter-acre lot. Each gets standard title
insurance on the purchase. And each builds her dream home on the site and
shares in the cost of a beautiful 6-foot stone fence on the property line.
Unbeknownst to both
Kim and Khloe, the property line separating the two lots was misrepresented.
Somehow, the line had been moved 10 feet onto Kim’s property – encroaching on
Khloe ends up
building a shed on “her” property (which is actually on Kim’s property). The
two are fine neighbors.
Fifteen years later,
Kim tries to sell her property.
The extra cautious
buyer demands a survey to confirm the property dimensions and the property
line. Lo and behold, the survey reveals the truth: Khloe’s 10-foot incursion
onto Kim’s property.
Should Khloe now be
required to move the block fence and the shed that she has used for 15 years?
The law likely would say that Khloe is now the owner of the 10-foot strip of
land and she need not move the shed or the fence. Such is the purpose of the
adverse possession law.
A few requirements
for the application of the law are evident in the above example. First, the
land must be possessed for a long time (generally seven to 10 years). Second,
the party claiming adverse possession must possess the land in a manner that
is: open and notorious – that Kim knew Khloe was on the 10-foot strip
(regardless of whether Kim knew it was her land); actual and uninterrupted –
that Khloe used the land continuously; exclusive – that only Khloe used the
land; and hostile – that Khloe treated the land as her own. Gorman v. City of
The doctrine of
adverse possession arose through the courts – sometimes called the common law.
The aim of the doctrine to serve “specific policy concerns that title to land
should not long be in doubt, that society will benefit from someone’s making
use of land the owner leaves idle, and that third persons who come to regard
the occupant as owner may be protected.” Stoebuck, Adverse Possession in
The example of the
divestiture of the 10-foot strip of land from Kim and the actual vesting of
title in the same strip to Khloe is just the tip of the iceberg. The law allows
the application of adverse possession against entire swaths of land, to form
ingress or egress easements, to establish easements for electric and cable and
water lines, or to otherwise modify property ownership rights.
So, what is a
property owner to do? As noted in the example, a great place to start is with a
survey to doublecheck the perceived boundary lines. When acquiring property,
you can get extended title coverage (for a higher premium cost), which would
include a survey to protect against encroachment.
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