Blog

3Apr, 12

Your new neighbor moves in next door and in considering building an expansion, has a survey done of his lot. The surveyed boundary line causes you to loose approximately 20 feet off what you and your previous neighbor were treating as the boundary. Your question then becomes whether or not you have the right to claim the property by adverse possession.

To acquire title to real estate by adverse possession, the possessor must show 20 years or more of adverse, continuous, exclusive and uninterrupted use of the land claimed so as to give notice to the record owner that an adverse claim is being made. If in fact the previous record owner for 20 years or more has seen you doing the mowing of the lawn or planting of gardens in the area and thought that you were doing that in your own property and you can get him to tell the truth to others, you should have a strong adverse possession claim against your new neighbor. One of my clients was successful in such a claim. Otherwise, you would have to show sufficient use of the property, to give notice to the record owner that you have been adversely possessing the property for 20 years or more. The Courts have found that mowing of the lawn, clearing of brush and planting of flowers may be insufficient to establish such notice again absent the record owner stating that he too thought the possessor owned the property. On the other hand, putting up a fence or creating a rock wall rather than relying on the old farmer’s rock walls that are throughout our properties in New Hampshire may be sufficient to prove an adverse possession claim.

If the adverse possessor is making his claim based in language in his deed it is called making an adverse possession claim with color of title, wherein the Court will presume the adverse possessor is claiming all the land described in the deed. For example, I had clients whose acre parcel abutting his house lot had been deeded to their father (which they thereafter inherited) as part of a large parcel from an elderly woman. She also sold the remainder of the property to another person, but that second deed not only did not carve out the acre parcel from the bigger tract, it was given a few days before the acre parcel was transferred. So my clients’ neighbor had record title to the acre parcel as part of the larger tract from the elderly woman. While it could have been argued that the elderly woman had made a mistake in conveying the entire lot after having already taken the steps to deed the one acre parcel to our clients’ predecessor in title, she was no longer living and the neighbor wanted the acre parcel. It was better to establish in litigation that our clients had “color of title” of the full acre parcel even though portions of it went into the woods and therefore were not continuously possessed by my clients for over 20 years and we were able to successfully prove title to the entire acre parcel. If my clients did not have color of title as adverse possessors, we would have had the burden in Court to show the full amount of land that our client had for 20 years, adverse, continuous, exclusive and uninterrupted use thereof, where we only have proof that my clients used certain lawn and garden areas of the acre parcel. Therefore, at a minimum, we would not have been able to prove that the wooded area of the acre parcel was our clients by adverse possession. Of course, also, in fairness, the elderly woman had intentionally sold the acre parcel to my client’s father many years ago and the neighbor should not have litigated the case.

An adverse possessor’s use of the property has to be sufficiently notorious to show that the record owner knew or ought to have known the adverse possessor was claiming exclusive ownership for 20 or more years, not in reliance upon the record owner’s toleration or permission. As the record owner, one action you may consider taking is, to while you are trying to resolve the boundary issues with your neighbor, provide written notice to the neighbor you are temporarily giving the neighbor permission to use the disputed property, thereby cutting off any continuing time period going towards 20 years of “adverse” possession.

Adverse possession claims of lakefront property could result in litigation over a relatively small piece of property, much of which is under water a lot of the time but still in title of the record owner. That is because you need to have lakefront ownership to enable you to apply for a mooring or a dock, two items that can obviously be very valuable to a homeowner. I successfully represented a record owner in such a case. Many adverse possession claims involve residential properties, yet the law equally applies to commercial property. I have also resolved without a trial several adverse possession claims. In all of these cases it is advisable to be working with both an attorney and a surveyor who are well versed in litigating and resolving out of court adverse possession claims.

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 dmarr@nashualaw.com.