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Adverse Possession and Prescriptive Easements

By
Real Estate Agent with Coldwell Banker Faucette Real Estate

I am writing in an effort to assist with a topic that I hope none of you have to deal with.  Adverse Possession.  It is a legal maneuver that allows a person to obtain title to someone else's property through legal means.  Because I am currently handling a real estate transaction with this issue and have been researching I will share my findings.

If a person moves into possession of property, improves it and possesses it in a public manner, then after a certain amount of time he will acquire title to the property even though it is actually owned by someone else. The idea for adverse possession has at its root that land should not lie idle. If it does, it is wasted to the community. Therefore, if someone moves onto the land and makes it productive, that person may earn the right to claim it as his or her own. It is also reflective of the imprecise nature of ancient land sales: a person who believes he owns land, establishes himself on it in public, and is not hindered after a period of time, should be entitled to own the land.

 There are many requirements relating to this. The basic requirement for adverse possession is that the claiming party must take exclusive possession of the property. This type of possession is called "open and notorious" or proactive and absolutely not secretive possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement; see your state codes or the code of the state in which you are interested for more detailed information.

HOW TO PREVENT A CLAIM OF ADVERSE POSSESSION OR PRESCRIPTIVE EASEMENT!

One effective way to thwart a possible claim is by giving permission to
use your land. If someone is out planting a garden in your backyard,
treating it as her own land, step over and say "Hello, you are on my
property by a few feet, but that's okay." You don't have to throw her
off your property; simply claim it. Then put the permission in writing
and obtain an acknowledgment from them. The chain has been broken. They
can tend that garden for forty years and still never acquire a legal
claim to your property if they has your permission.

An example of written permission is shown below.

Agreement Granting Permission to Use Property

I, John Doe, owner of the property located at 123 Main ST,
USA give my permission to Jane Doe to plant and tend a
garden located on a five-foot strip of my property bordering the west
side of the property line. I reserve the right to revoke this permission
at any time.

___________________________ __________
John Doe                              Date

I hope this help to save someone the trouble.

Devon Cerniga www.ISellNWA.com

Fran Gaspari
Patriot Land Transfer, Inc. - Limerick, PA
"The Title Man" - Title Insurance - PA & NJ

Devon,

Good post. You hear a lot about adverse possession, but it is relatively rare. Thanks,   Fran

 

Sep 16, 2007 05:29 AM
Devon Cerniga
Coldwell Banker Faucette Real Estate - Bentonville, AR
Thank for the comment....any other thoughts about this topic?
Sep 16, 2007 05:55 AM
Anonymous
A real estate owner

I would like to know how many years a person that is claiming adverse possession in CT needs to be using land notoriously before they have a right to file a suit?  Also, where do they file a suit? 

And what kind of a suit would this person file so I may keep watch in the paper?

 

May 13, 2009 02:48 AM
#3