Adverse Possession

Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises...

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Quitclaim deed does not negate good faith for purpose of adverse possession if the occupying parties did not actually know they were on land owned by another

Georgia is one of the few states that requires "good faith" in order to acquire property by adverse possession. That means that one cannot acquire property by adverse possession if one is knowingly occupying property of another. In McBee v. Aspire at Midtown Apts., L.P. 807 S.E.2d 455 (Ga. 2017), the question arose whether an owner was precluded from asserting...

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Out of court admission of permission from prior owners can defeat claim for adverse possession

The Wyoming Supreme Court has held that out of court statements made by an alleged adverse possessor that he was using the property with permission of the prior owners can be admitted to rebut the presumption that the use was nonpermissive. Galiher v. Johnson, , 2017 WY 31, 391 P.3d 1011 (Wyo. 2017) Read more about Out of court admission of permission from prior owners can defeat claim for adverse possession

Prescriptive easement denied because longstanding use of neighboring land was presumed to be permissive

When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this "possession" will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use -- rather than full occupation or "possession" -- is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the...

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Adverse possessor has trespass claim against original owner

In Owens v. Buccheri, 2016 Mass. LCR LEXIS 121 (Mass. Land Ct. 2016), the Massachusetts Land Court held that an adverse possessor can sue the original owner of land acquired by adverse possession for trespass when the original owner cuts down trees and excavates on the land. While in some sense an unremarkable holding, it is an object lesson not to engage in self-help on disputed land when the facts are such that one might have lost title to that land by adverse possession.

The court also reaffirmed the rule that one can commit a trespass by mistake if entry...

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An owner can obtain property by acquiescence even if the neighboring land is unoccupied

The Utah Supreme Court has held that an owner can obtain property "by acquiescence" if the owner occupies a strip of the neighbor's land in a visible manner without objection.  Anderson v. Fautin, 2016 UT 22, 379 P.3d 1186 (Utah 2016). Although "acquiescence" suggests that a neighbor is aware of the placement of the border and either agrees or does not object to it...

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Informal border change by acquiescence

The Utah Supreme Court has affirmed and applied the doctrine of "boundary by acquiescence" under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by...

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Adverse possession denied when permission was mistakenly sought from non-owner

The Wisconsin Supreme Court held in Wilcox v. Estate of Hines, 849 N.W.2d 280 (Wis. 2014), that owners who thought a strip of land was not theirs but sought permission from someone who was not the true owner cannot establish adversity even though they occupied the property without permission of the actual owner.

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Washington Supreme Court joins courts that reverse the presumption of permissiveness for prescriptive easements

In general, possession of property owned by another is presumed to be non-permissive. Thus, one can obtain property by adverse possession if one actually possess real property in a visible manner for the statute of limitations without regard to proof of lack of permission. Many courts apply the same presumption to claims for prescriptive easements. The reason is that some border cases (such as use of a strip of property for driveway purposes) may involve both an adverse possession claim and a prescriptive easement claim and it is thought to be irrational to reverse the presumptions for the...

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