Adverse Possession…What Is it?

By: Dean Fankhauser | October 2021 | Real Estate

One of the questions posed to attorneys often is “What is adverse possession?” Adverse possession is a legal doctrine providing for the ownership of land if a person uses and treats it as their own for a certain period of years. For a person to be successful in a claim for adverse possession of land, the claimant must be able to prove four factors: 1) the use and possession of the land is hostile to the title holder; 2) the use and possession of the land is open and notorious; 3) the use and possession of the land has been exclusive to the user/possessor of the land; and 4) the use and possession of the land is continuous. Let’s discuss the factors each separately.

1. The use and possession of the land is hostile to the title holder.

No, this doesn’t mean you threaten harm to the title holder. Hostility in this sense means you are using the land without the title holder’s permission. For example, let’s say you own a house with a yard, and your neighbor decides to build a fence to enclose their backyard, which encroached three feet onto your property. Your neighbor never asked you if they could build the fence partially on your property, and frankly, you didn’t even know where the property line was located, so you assumed all was well. You never raised the issue. Your neighbor’s use of the property is hostile to your ownership of that land because they are using it without your permission.

2. The use and possession of the land is open and notorious.

Remember back to our hypothetical. You saw your neighbor build their fence, and you saw they were using the land upon which they built the fence. Yep, it’s open and notorious. They were not using the land under cover of night, and they were using it right in front of your eyes. That makes their use of the land open and notorious.

3. The possession and use of the land has been exclusive to the user/possessor of the land.

Well, what does that mean? I know my neighbors have friends over, so they are not exclusively using the land. Nice try, but no. Your neighbor built a fence to enclose their backyard, remember? You do not have access to the land anymore, and nobody claims they are using it… in fact, your neighbor is the only party who has access to their backyard. They have exclusive use of the land.

4. The use and possession of the land is continuous.

Continuous use of the land means your neighbor has not stopped possessing the land during the period for which they are asserting their claim of adverse possession. In our fantastic hypothetical, your favorite neighbor has not taken down their fence, and they have not ceased possessing the land. Because of their actions, they have continuously used the property since they built their fence.

So, how long before my neighbor becomes the new owner OF MY LAND?

The simple answer is they are not the new owners until a court of competent jurisdiction says so. However, to establish their claim of ownership, all the factors discussed above would need to be met for a period of five (5) years before a court can declare them the new owners of the land. The best way to protect yourself against this type of claim is to know your property boundaries and regularly inspect your property to ensure nobody else is using it.

WHERE CAN I FIND THE BEST ATTORNEY TO HELP ME WITH MY LEGAL MATTERS?

As always, the lawyers at Tigges, Bottaro & Lessmann, LLP Law Firm are centered on providing exceptional legal services to the people of Siouxland and the surrounding area. The attorneys pride themselves on being first-rate advocates, ensuring their client’s rights and interests are protected and each voice is always heard. Using their knowledge, expertise, and over 240 years collective experience, they aim to deliver the best results possible for their clients.

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