Legal oddity: Trespassing can lead to ownership
The legal doctrine of “adverse possession” shocked me when I first learned about it in law school. Imagine this. I paid for my land and have the deed to prove it. Without my permission, you use my land for 20 years, at which time you may have satisfied the legal requirements to have obtained ownership of my land through adverse possession, without paying me.
Let’s say your house is on a small parcel of land, but you want a large garden. Your next door neighbors have 50 acres. You decide to use an acre of your neighbors’ land for your garden. This acre is far from the neighbors’ house, and you have never seen your neighbors on this part of their property. You clear some trees, till the soil, run a sprinkler system from your house over to your new garden, and set up a scarecrow. You grow all kinds of vegetables in neat rows; corn, tomatoes, giant pumpkins, etc. In the winter you grow kale and leeks under hoop tunnels. After a few years you build a shed in which to keep your shovels, hoes, tomato cages, and other implements. Eventually you put a fence around the garden.
This sounds like trespassing. But the years go by and your neighbors haven’t said anything. You used to hope that they wouldn’t notice the garden, but you have seen each of your neighbors near the garden. You know they’ve seen it but haven’t said anything to you. You continue to tend your garden every season and year without fail. You repaint the shed and give the scarecrow a new shirt. After 20 years of doing this, your neighbors demand that you remove the shed and get off their land. This was the moment you have been dreading all these years. Nothing comes for free, right? Well, sometimes it might.
To acquire a parcel by adverse possession, you need to have used the land for at least 20 years in an adverse, continuous, exclusive, and uninterrupted manner. Basically, you need to use the land in such a way that puts the record owner of the land on notice that you are using it. Your use has to be open and visible such that the landowner could see that you are using it.
The term “adverse” refers to you not having the owner’s permission to use the land. Going back to the gardening scenario above, if after 15 years of continuous gardening the landowner visited your garden and said, “Nice garden, go ahead and use it for as long as you want,” your adverse possession claim would be wiped out because the landowner has given you permission. Your use of your neighbors’ land would no longer be adverse to your neighbors.
I wouldn’t say for certain that the gardening scenario above would give you ownership of your garden, but the facts that you cut down the trees, built a shed, erected a fence, planted abundant and large crops, and raised winter crops are some of the key facts that might support a successful claim that you now own the land through adverse possession. On the other hand, neither the shed nor the fencing were there the entire 20 years, so a court might not consider your other gardening activities sufficiently open, visible, and continuous to support your adverse possession claim. Claims of adverse possession are very dependent on the facts of the use.
Some uses are clearly not sufficient to establish a claim of adverse possession. If you rake your yard every fall and dump the leaves in your neighbor’s woods, you do not own your neighbor’s woods after 20 years. Similarly, cutting a couple cords of wood from your neighbor’s woods every autumn to heat your home would not appear to give you ownership. These uses are not the type of visible and open use that would put your neighbor on notice that you are making an adverse claim. Also, you would not be making exclusive use of the land, which is another legal requirement.
I am not advocating that you occupy your neighbor’s land with an eye toward owning it. Rather, I encourage landowners to be aware of their boundaries and to know what is happening on their land. If someone is using your land against your will, ask them to stop or seek legal redress. If someone is using your land in a way that doesn’t bother you, simply giving them permission to continue using your land should ensure that they do not have a viable claim of adverse possession in the future. If you own a large parcel of land, you should walk the boundary from time to time because you never know if an abutting property owner is using your land to store equipment, to cut down trees to enhance their view, or to establish a garden.
If you don’t protect the ownership of your property, by the time you find out that someone is using your land it may not be your land anymore. You don’t want to find out about this while you are in the midst of selling your land or donating a conservation easement, as it will surely delay and complicate the transaction while the adverse possession claim is resolved either by settlement or in court.
Jason Reimers is an attorney for BCM Environmental & Land Law. This article is not legal advice.