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  • Inside Track
    August 05, 2015

    Wait! Is That My Land? Understanding Adverse Possession

    Aug. 5, 2015 – Where does your property end? Could you point out the exact line described in the deed? Most people wouldn’t be surprised if they were off by a few inches, or maybe even a few feet. But sometimes it’s more: An acre or even a whole 40-acre parcel. It happens. And whether large or small, disputes over boundaries often arise.

    Property owners often rely on actual occupation on the ground, even if it doesn’t match the real boundary lines. Over time and under certain circumstances, that occupation can alter the ownership of the property. It’s called adverse possession, and it is an ancient legal doctrine under which “property can become yours even if you don’t have a deed that describes it,” says Jessica Shrestha, an attorney with Wheeler, Van Sickle & Anderson SC of Madison.

    “Adverse possession comes up most often for a typical property owner with a fence. That’s really the classic example.”

    And while a fence may mark a particular border, it’s not necessarily the actual boundary. Even if the property owner had a survey done to tell them exactly where their property line is, “they might construct their fence a foot inside their property,” says Shrestha, to ensure they stay on their side of the line.

    However, “sometimes it’s a greater distance, and over time they forget or maybe they didn’t know where the exact boundary was in the first place.” And so, by operation of adverse possession, that fence might become the boundary. Similarly with lines of trees and hedges, “or even people might place a shed on a neighbor’s property, and that’s a city lot.” In more rural areas, “the same thing can happen with pasturing cattle or with fences for crop land.”

    The Six Ws of Adverse Possession

    So what should an attorney consider when dealing with an adverse possession situation? Start with the six W’s, says Shrestha.

    “To start, I think the easiest way to think about it is, you have to ask the basic questions: who, what, when, where, why, and how.”

    Who: Who are the parties involved? “With adverse possession it’s not going to just be the current property owner necessarily. Do you have a governmental entity? Who owned that property 20 years ago?

    What: What sort of property is involved? “Is it hunting property? A city lot? Those are important things to know about property when deciding if you have adverse possession.”

    Where: How much property is involved. “What is the actual boundary line that’s in dispute?”

    When: What time period and for how long? “Are we talking 20 years of adverse possession? Was it occupied between 1930 and 1950?”

    Why: Why did the adverse possession happen in the first place? “A recent case, Wilcox v. Heinz, told us it is important why you were possessing that property: Did you intend to possess it? Was it with the permission of the true owner? Did you think it was your property?”

    How: What were the acts of possession that constitute adverse possession?

    Once you collect all of this information, you can begin to determine if the situation clearly demonstrates adverse possession. “I compare it to the case law and then I start to think about possible defenses and different related doctrines that could come into play, such as the doctrine of acquiescence or easements,” says Shrestha.

    Beyond Statutes: Look to Case Law for Guidance

    Given its long history, it should come as no surprise to attorneys that adverse possession statutes actually codify the common law.

    “Attorneys should know that the statute isn’t going to answer their question in most cases,” says Shrestha. “You need to look at the entire body of law that has developed over time.”

    Moreover, there are elements in the cases that are not listed in statute. So while the elements of adverse possession are continuous, exclusive, open and notorious, and hostile possession, “there is no reference of most of those terms in the statutes themselves.”

    So what should an attorney look for guidance? “You shouldn’t just look at either the first case or even the last case,” says Shrestha. “It’s a long and complex doctrine that has evolved over time. A good place to start is probably the latest case, but there are plenty of cases from over a hundred years ago that I still reference and that are still relevant good law that you will need to be aware of.

    “Our state, along with a lot of other states, has developed the law in its own way. I think the best way to follow along and know what you should be looking at is to just go through the cases. You’re going to have to do your case law research.”



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