Although mowing grass can be a factor in demonstrating “possession” of property, it cannot (by itself) prove exclusion of the record owner or “actual possession” sufficient to obtain title by adverse possession. Hovet v. Dahl, 9 N.W.3d 699 (N.D. 2024). Nor is it sufficient to prove “acquiescence” to a change in the border between the properties.
In a somewhat surprising case, the Idaho Supreme Court has held that an irrigation system that oversprays to cover land and which intrudes onto neighboring property can ripen into a prescriptive easement if the water sprays intrude on the neighbor’s land for the statutory period. Chester v. Wild Idaho Adventures RV Park, LLC, 519 P.3d 1152 (Idaho 2022).
Exclusivity makes sense for adverse possession because the very meaning of “possession” is that the adverse possessor acts like the owner and that includes the right to exclude the record owner. With easements, it makes far less sense since easements are limited uses of another’s land and the land owner can still use the land over which the easement sits as long as the owner does not interfere with the uses encompassed by the easement. To deny a prescriptive easement over a road because the record owner also uses the road doesn’t make much sense. Excluding the record owner would turn the case into one of possession rather use and that would make prescriptive easements impossible if the record owner continued using the land even if the owner did not exclude or interfere with the use of the easement by the prescriptive easement claimant. Despite that traditional approach, the Texas …
Do prescriptive easements have to be “exclusive”? Read More »
The general common law of trespass in most states presumes that entry to land of another is nonpermissive. That presumption can be overcome by expressions of permission or by social conventions, such as opening up a shop or knocking on someone’s front door to lobby them to support a political candidate. Some states have an exception for undeveloped forest land where nonowners can hunt unless the landowner has posted “no hunting” signs. This presumption that entry is nonpermissive is a staple of adverse possession law. Occupation of the property of another is presumed to be nonpermissive unless facts can be shown otherwise. The same has historically been true for prescriptive easements. Use of another’s land without permission is presumptively a trespass. However, in recent years, some courts have balked at granting prescriptive easements for uses other than travel over a right of way. They have not wanted neighborly gestures to …
Some states require a “claim of right” to obtain property by adverse possession. This supposed element of the claim is confusing because it is not clear what it adds to the other requirements: nonpermissive visible continuous exclusive possession for the statutory period. In general, this phrase simply differentiates ordinary adverse possession cases from ones based on “color of title” where a deed or other granting instrument is defective (and thus does not pass title to the grantee) while the grantee occupies the property for the statutory period. The Alabama Supreme Court clarified the claim of right idea by stating that it means that “an adverse possessor has an intention to claim title to the disputed property.” Phoenix East Ass’n, Inc. v. Perdido Dunes Condominium Owners Ass’n, 2024 WL 1514608 (Ala. 2024). And how does one show that? By showing that the adverse possessor “possessed” the property without permission—in other words …
“Claim of right” requirement for adverse possession explained Read More »
Reaffirming the basic mechanics of adverse possession a Virginia court holds that successive adverse possessors can tack their time together to meet the statutory period. So an adverse possessor who occupies land for 10 years and sells their property to a buyer who also occupies it for five more years satisfies a 15-year requirement for adverse possession. And when the record owner sells their property, they have now lost title to the adversely possessed property and have no power to transfer that property to their buyer. The recording statutes do not protect the buyer because they are on constructive notice of what an inspection of the property would show, i.e., that their neighbor is occupying property described in the deed. That inquiry would reveal the transfer of title by adverse possession and so the buyer is not actually a “bona fide purchaser” without notice. See Ho v. Rahman, 896 S.E.2d …
Many courts say that prescriptive easements can only be acquired if the use is “exclusive” among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute “use” for “possession.” But it make no sense for an easement to be “exclusive” since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how easements work for them to be exclusive of the land owner. If the landowner cannot use the easement in any way then the owner has lost title to the property. Of course, one can write an express easement to limit the freedoms of the land owner, but in general, the way easements work is to grant a limited use to another while the land owner retains all rights not inconsistent with that use. In effect, an easement …
Prescriptive easements do not actually require “exclusive” use no matter what courts say Read More »
The Massachusetts Land Court has ruled that a married couple that owned a 1/3 interest as tenants in common with other owners lost their interest by adverse possession to their cotenants because their predecessors in interest had failed to use the area after they were “ousted” by their cotenants. Kane v. Harrington, 30 LCR 579, 2022 Mass. LCR LEXIS 90, 2022 WL 4533930 (Mass. Land Ct. 2022). In general, co-owners do not lose a commonly-held property interest merely because they do not use it. All co-owners have the right to possess the entire property so doing so does not constitute a trespass against other co-owners. Only when a tenant in common actually excludes another cotenant from the property (or tells them they are not welcome to use the property and does not allow them access) does the statute of limitations for adverse possession begin. That moment of “ouster” does start the …
Ouster of tenant in common shown from very long exclusive possession Read More »
When a dispute arose between the Cambridge Housing Authority and its neighbors over the location of a fence, the Massachusetts Land Court applied a statute that denies adverse possession of government-owned property, Mass. Gen. Laws ch. 260, §31, when that property is held for public purposes. Some other states have done away with sovereign immunity from adverse possession claims but this case reminds us that some states have the older immunity rule. Vasquez v. Cambridge Hous. Auth., 2022 WL 3331567 (Mass. Land Ct. 2022). In this case, the trespassory invasion was a fence rather than a building and the court ordered the fence removed or moved to the proper boundary so it no longer encroached on government land.
A Massachusetts land court has reaffirmed the general rule that you cannot acquire registered land by adverse possession. Ramos v. Meade, 2022 WL 2733273 (Mass. Land Ct. 2022).
