Adverse Possession – Page 3 – Joseph William Singer

Quitclaim deed does not negate good faith for purpose of adverse possession if the occupying parties did not actually know they were on land owned by another

July 10, 2018 / Adverse Possession, Title Issues

Georgia is one of the few states that requires “good faith” in order to acquire property by adverse possession. That means that one cannot acquire property by adverse possession if one is knowingly occupying property of another. In McBee v. Aspire at Midtown Apts., L.P. 807 S.E.2d 455 (Ga. 2017), the question arose whether an owner was precluded from asserting good faith when they signed a deed that defined the disputed parcel as belonging to a neighbor. The court held that the occupying parties was doing so in good faith despite the deed they did not know where the actual border was and did not actually know that they were occupying property belonging to another.

Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

July 10, 2018 / Adverse Possession, Easements, Real Estate Transactions, Servitudes, Trespass

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises because an owner who parks a car on a driveway that encroaches on neighboring land may be viewed as undertaking a limited use of the land (use for parking purposes) or may be viewed as acting as an owner with full control of the property being used. Often the question will turn on whether the use of the area was exclusive, i.e., whether the owner of record title was excluded from the property. If the record owner was excluded, adverse possession is likely to be awarded. If the parties …

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Out of court admission of permission from prior owners can defeat claim for adverse possession

July 30, 2017 / Adverse Possession

The Wyoming Supreme Court has held that out of court statements made by an alleged adverse possessor that he was using the property with permission of the prior owners can be admitted to rebut the presumption that the use was nonpermissive. Galiher v. Johnson, , 2017 WY 31, 391 P.3d 1011 (Wyo. 2017)

Prescriptive easement denied because longstanding use of neighboring land was presumed to be permissive

July 19, 2017 / Adverse Possession, Easements, Real Estate Transactions, Trespass

When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this “possession” will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use — rather than full occupation or “possession” — is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the presumption that use if permissive in the absence of statements or actions that show that it is nonpermissive and found no prescriptive easement in the case of DiNino v. Newman, 2016 Mass. LCR LEXIS 179 (Mass. Land Ct. 2016). The court purported to apply the Massachusetts presumption that use is adverse (nonpermissive) and found that facts overcame that presumption. However, the only facts that …

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Adverse possessor has trespass claim against original owner

May 29, 2017 / Adverse Possession, Trespass

In Owens v. Buccheri, 2016 Mass. LCR LEXIS 121 (Mass. Land Ct. 2016), the Massachusetts Land Court held that an adverse possessor can sue the original owner of land acquired by adverse possession for trespass when the original owner cuts down trees and excavates on the land. While in some sense an unremarkable holding, it is an object lesson not to engage in self-help on disputed land when the facts are such that one might have lost title to that land by adverse possession. The court also reaffirmed the rule that one can commit a trespass by mistake if entry on the land is voluntary. The court also interpreted a state law allowing for treble damages for removal of trees on someone else’s land to allow damages not only for the value of the timber that was wrongfully cut or the diminution in the fair market value of the land but …

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An owner can obtain property by acquiescence even if the neighboring land is unoccupied

January 3, 2017 / Adverse Possession, Title Issues, Trespass

The Utah Supreme Court has held that an owner can obtain property “by acquiescence” if the owner occupies a strip of the neighbor’s land in a visible manner without objection. Anderson v. Fautin, 2016 UT 22, 379 P.3d 1186 (Utah 2016). Although “acquiescence” suggests that a neighbor is aware of the placement of the border and either agrees or does not object to it, the Court found that the same doctrine should apply even if the neighboring land was not occupied. Holding otherwise would reduce the security that comes from not having the neighbor object to placement of a fence. The doctrine in Utah requires a claimant to satisfy four elements: (i) occupation up to a visible line marked by monuments, fences, or buildings; (ii) mutual acquiescence in the line as a boundary; (iii) for a period of at least 20 years; (iv) by adjoining landowners. The doctrine is distinguished from adverse …

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Yard maintenance not sufficiently visible for adverse possession

July 29, 2016 / Adverse Possession, Trespass

The Nebraska Supreme Court held that operation of a hidden sprinkler system and lawn maintenance were not sufficiently visible or “notorious” to put the record owner on notice of the adverse actions and thus could not ripen into adverse possession. Poullos v. Pine Crest Homes, LLC, 876 N.W.2d 356 (Neb. 2016).

Informal border change by acquiescence

July 29, 2016 / Adverse Possession, Real Estate Transactions, Statute of Frauds, Trespass

The Utah Supreme Court has affirmed and applied the doctrine of “boundary by acquiescence” under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by adjoining owners. The doctrine differs from adverse possession because it is based on mutual permission rather than adverse occupation (occupation that is non-permissive).

Adverse possession denied when permission was mistakenly sought from non-owner

July 3, 2016 / Adverse Possession

The Wisconsin Supreme Court held in Wilcox v. Estate of Hines, 849 N.W.2d 280 (Wis. 2014), that owners who thought a strip of land was not theirs but sought permission from someone who was not the true owner cannot establish adversity even though they occupied the property without permission of the actual owner.

No statute of limitations bars a claim to set aside a forged deed and subsequent mortgage

October 12, 2015 / Adverse Possession, Consumer Protection, Mortgages, Real Estate Transactions, Statute of Frauds, Title Issues

The New York Court of Appeals had reaffirmed the traditional rule that forged deeds do not convey title. It has clarified that no statute of limitations bars a challenge to a forged deed even if the purported owner has subsequently transferred interests in the land to a subsequent mortgagee who had no notice of the forgery. Faison v. Lewis, 32 N.E.3d 400 (N.Y. 2015). The Court ruled that the third party purchaser is not a “bona fide” purchaser protected by the recording act because a forged deed can never be the basis of a valid transfer even if the third party did not know and could not have known about the forgery. To do otherwise would allow the forger to “steal” property and get away with it.