One of the more disheartening events in the land development process is the survey that reveals an encroaching use by an adjoining property owner. In a residential setting, this may be something as minimal as landscaping. In other settings, it may be much more significant and include buildings or parking areas.
While the nature and extent of the encroachment may vary, the reaction of encroaching owners tends to be predictable. Typically, the reaction is that they have been enjoying the encroaching use of your property for years and have no intention of giving it up. If the encroaching owner is not initially familiar with the concept of adverse possession, he or she readily becomes so and, unfortunately, so do you.
Adverse possession is a legal doctrine founded on the belief that use of property should be maximized and title issues should be resolved. In its most common application, it provides a basis for turning use of property into ownership, assuming that the nature of the use meets certain criteria and has been continuous for a period of ten years. While some courts have referred to adverse possession as legalized theft, courts continue to award property ownership to those who can prove the elements of adverse possession.
A common misperception is that adverse possession requires an adverse intent on the part of the encroaching owner; i.e., the encroaching owner used the property knowing it was yours and intending to take it from you. In fact, a completely innocent mistake in the placement of a parking lot, building, or fence can give rise to adverse possession as long as all other elements of the claim are present.
If you should find yourself faced with an encroaching use, you may want to document, with photographs or otherwise, the nature and extent of the use as soon as you become aware of it. It is not infrequent that once the boundary line battle is joined, the encroaching owner tends to intensify and even try to expand the use.
If the encroachment issue can be satisfactorily resolved through direct discussions with the adjoining owner, this is by far the best option. What many encroaching users fail to realize is that adverse possession is generally not a passkey to free property. Actual proof of entitlement to property through adverse possession requires extensive marshalling of facts regarding who did what, when, and where on the property in question, and under what circumstances, throughout the entire ten-year period. This extensive marshalling of facts can translate into legal bills that substantially exceed the per-square-foot value of the property at issue.
As the party resisting an adverse-possession claim, you may be entitled to help from a couple of sources in any boundary line battle. While standard title insurance generally does not cover adverse-possession claims, if you purchased an extended title policy you may be able to turn the problem over to the title company issuing the policy. In any event, you should certainly give notice of the claim to your title company.
You may also be entitled to help from your seller. In most instances, a seller of real estate conveys the property to the buyer by warranty deed. As the name suggests, warranty deeds provide warranties by the seller to you as the buyer. Because of these warranties, you may be able to look to your seller to defend the adverse-possession claim or to reimburse you for your costs to defend the claim. If the claim is successful and the adjoining owner proves ownership by adverse possession of some portion of the property you purchased, you may be able to look to your seller for compensation for the loss.
Keep in mind that as the owner of the property subject to encroachment, you do not benefit from the continued passage of time. If the encroachment is of significance to you, you should consult an attorney familiar with these situations as soon as possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
