Under New Hampshire law, to obtain property by adverse possession the adverse possessor must show 20 years of continuous, open, and uninterrupted use of the property in question.
The adverse possession clock can be stopped by the record owner in two circumstances. First, the record owner can give permission to the adverse possessor to continue using the property. Once the use becomes permissive, the adversity element ends and if the adversity element ends prior to the expiration of 20 years, the adverse possession claim cannot be brought. The second method of stopping the adverse possession clock from running is through ouster. The ouster means that the record owner of the property in question does something to prevent the plaintiff from their use and occupation of the property. There is a significant question as to what acts constitute ouster. In the recent case of O’Malley v. Little, decided August 31, 2017, the defendants argued that they “ousted” the plaintiffs from their adverse use of their land by showing them a survey that demonstrated where the true boundary line was located and sending them emails and phone calls asking them to remove a fence that was located on the disputed property.
The trial court ruled in favor of the plaintiffs finding that the defendant’s statements “[w]ould not put a reasonably prudent on notice that they had actually been ousted.” On appeal, the Supreme Court agreed holding that letters and emails to the adverse possessor asking them to move the fence are ineffective. Moreover, having a survey done showing the location of the true boundary line does not constitute ouster and even casual entry by the record owner for a limited purpose onto the disputed land does not sufficiently destroy the adverse possession.
This leads to the question of what must an owner do to oust an adverse possessor. Obviously one does not want to take the law into their own hands by physically removing structures or people from the property. The better course of action would be to consult with an attorney and/or immediately file a complaint with the court ordering the adverse possessor to vacate the disputed property.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].