Real Estate

Neighbor Disputes, Easements and Adverse Possession

Our home should be a place of peaceful enjoyment, stress-free and a place we enjoy spending time.  However, often issues come up with neighboring properties that can threaten that peaceful enjoyment.  These issues can involve boundary line disputes, fence disputes, survey issues and easement issues.  Real property issues can be difficult to resolve; however, our firm has extensive experience in thinking creatively and advocating successfully for our clients.

Adverse Possession: Who Owns My Property?

If a property owner fails to occupy or use land for a period of 10 years or more and another person occupies, uses and maintains that land continuously and exclusively during that period of time, that individual can gain legal ownership of the land.  The legal term for this is “adverse possession.” Adverse possession is a method of gaining legal title to real property by the actual, open, hostile, and continuous possession of property to the exclusion of the true owner for a ten-year period. Often the true owner will see this as an act of stealing property; however, the occupier of the land often sees this as fair if he or she has cared for the property for a decade.  Often neither property owner is aware that the disputed property belonged to the true owner – they often assume the person maintaining the land is the owner.  Typically, a survey will disclose the fact that the property line is not where it was believed to be.

For most people, cases of adverse possession deal with boundary disputes between people who own adjacent parcels of land.

When can I assert Adverse Possession over Property?

To assert a claim of ownership through adverse possession, certain technical conditions must be met.  The possession must be:

  • Actual. The possessor must physically occupy and use the property as the true owner would do.  The actions of the possessor must change the state of the land.  This might be through clearing, mowing, planting or harvesting produce, logging, fencing, mining, constructing buildings or other improvements.

  • Exclusive. The possessor must hold the property for the stated period of time to the exclusion of all other claims of ownership. If the true owner of the property grants permission to the possessor for the occupation of the property, then adverse possession is defeated.

  • Uninterrupted. The possessor of the land must occupy the property continuously for the ten-year period. Occasional activity on the property, such as occasional mowing or planting, is not sufficient to establish adverse possession. If the true owner stops the possessor at any point during the ten-year statutory period, the clock stops and adverse possession has not been achieved.  It is important to recognize that subsequent individuals can combine their years of uninterrupted occupation of property to reach the ten-year period to assert adverse possession.  For example, subsequent individuals may combine their years of exclusive, uninterrupted use of property to achieve adverse possession.

  • Open and notorious. The possessor’s use of the property must be highly visible and apparent such that a diligent owner could not help but notice this activity.  This includes activities such as building fences, gates or posting signs, constructing improvements or similar activities.

  • Hostile. The possessor must occupy the land without the permission from the true owner. In the case of adverse possession, “hostile” means in a manner that is hostile to and inconsistent with the true owner’s rights.  Adverse possession cannot be claimed by anyone who uses the property with the true owner’s permission, such as tenants or guests.

 

Our firm has extensive experience in dealing with adverse possession cases.  If you believe you have a claim of adverse possession or you are a landowner facing an adverse possession lawsuit, we can provide you with valuable information in a complementary consultation.  It is important to seek legal help quickly to protect your rights. Contact us at 253.329.1656 or contact us online.

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Easements: Non-possessory Uses of Property

Easements often benefit properties by providing access, allowing for utilities to reach your property, and allowing for development and subdivision of property.  Easements essentially involve the use of property without possessing the property. The person with the right to use the Easement is not the owner of the property upon which the Easement sits – instead, it involves a limited right to use the property.

Easements can be formal, with written agreements that are recorded as a matter of public record. However, Easements can also be created by a pattern of use, which create Prescriptive Easements or Easements by Implication.  Ideally, Easements should be put in writing and recorded. Typically, Easements “run with the land”, which means they are effective indefinitely and automatically transfer from one owner to the next.

Often, an Easement “benefits” one parcel of property while “burdening” another.  If you have a right to maintain a driveway over your neighbor’s property, your property is “benefited” by the Easement while your neighbor’s property is “burdened” by the Easement.

Easements can create disputes, however.  One source of disagreement that often occurs is when a property owner exceeds the limitations set out in the Easement, and over-burdens the other property.  This can happen when the use changes, such has when vehicular traffic exceeds a reasonable use, or when the Easement is physically expanded without the other property owner’s agreement.  In other cases, a property owner may block the legitimate use of an Easement, or attempt to change to location of an existing Easement.

If you have concerns about an existing Easement, or if you wish to create an Easement or alter an existing Easement, it is important to seek competent legal help for this complex issue.  Our firm can assist with all Easement issues and we offer free consultations to discuss your options.  Call us at 253.329.1656 or contact us online for assistance.

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