You and your neighbor have lived with an understanding of the boundary line between your two properties for over 20 years. Your neighbor sells the property; the new owner has the property surveyed and finds out that the record title boundary line is further into your property that you thought. He therefore promptly takes that property. Sound familiar? Generally, the owner of record has the right to do this, yet an exception to that right exists when a person can be deemed the owner of the property through adverse possession, or the possessor may have a right to use that land through a prescriptive easement.
To be the owner through adverse possession, a person has to have openly, continuously, adversely, and notoriously used that property as his own for 20 years or more. That possessor is allowed to combine his use with that of his predecessors to make up those 20 years. The use of the property has to be enough to put the record owner on constructive notice that the possessor is claiming an ownership interest in that property. If the record owner does nothing for 20 years and allows this open, continuous, adverse, notorious use, the possessor may seek a court order that he owns that property by adverse possession. If that use is shared with the record owner, there could still be an ongoing right to use through the prescriptive easement.
In the example above, the court will allow you to move the property line back to where you and the previous neighbor thought it was for 20 years. The court order can be recorded in the Registry of Deeds pursuant to statute, RSA 676:18(V). This is true even if the record owner did not know the property was his as long as there was no concealment by the possessor, and so adverse possession can still result in that property being lost by him. If both neighbors for 20 years mistakenly believed the property line was at a particular location and treated it as such, then under New Hampshire law, both of their mistaken beliefs would not prevent the possessor from taking the property by adverse possession. If, however, the adverse possessor had taken a pipe and moved it into the record owner’s property to conceal where the true record line was, an adverse possession claim would fail.
If there is a fence or rock wall delineating the property line and the parties have treated that fence and/or rock wall as the boundary for 20 years, then they could be said to have acquiesced that being the boundary line and the record owner will lose that portion of the property up to the acquiesced property line. If a record owner during the 20 years realizes through a survey that he owns the property but does not want to be a bad neighbor and move a fence or property line into the neighbors’ front yard, the record owner should speak with an attorney. There should be a properly verified written notice to the possessing neighbor about the survey clarifying that the record owner owns this property but stating that the record owner gives permission for his neighbor to continue to use the property until the record owner decides otherwise. The benefit of such notice would be to preserve the use of the property for the time being, yet since there is permission given by the record owner, the possession is no longer “adverse” and therefore the 20 years of adverse possession stop accruing. For vacation homes, a difficult question can be whether or not the use has been continuous for 20 years because frequently those properties are only used for a few months a year.
Generally, in such boundary line disputes between neighbors it is prudent to seek out legal counsel and a surveyor who has experience in dealing with such matters. They are able to determine what your rights are and what the next course of action should be, whether you are the record owner or the “adverse possessor.”
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].