Will I lose land by adverse possession?


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Dear Real Estate Adviser,
I’ve just discovered through a land survey that my neighbor has been using a 20-foot strip at the very back of my 1-acre piece for upward of 20 years. This strip, it turns out, comes within inches of his house. Can I reclaim this even though the neighbor considers it his?
— C.J.

Dear C.J.,
Most of the letters I get on the ancient issue of adverse possession, or “squatter’s rights,” are from or about someone who’s trying to pull a fast one. But your case is actually representative of why such laws were crafted in the first place — an observation that, alas, offers you little solace.

First off, adverse possession is a somewhat hazy law applying to parties who have used a property openly with no objection from its “real” owner for a minimum number of years — a “statute of limitations.” Laws vary from state to state, but the period of possession can range from five to more than 20 years, depending on circumstances. The use of the property in question must typically be continual and conspicuous (“open and notorious” say most laws) and without your consent.

Typically, homeowners who are given no reason to believe that a side-yard abutting their homes isn’t their own will feel entitled to it and hence maintain or even improve it, plant flowers or shrubs on it, or even put a driveway or temporary structure there. While such cases are seldom cut-and-dried, your neighbor does seem to have a leg up on a valid adverse claim after 20 years’ worth of unimpeded use.

You don’t say whether you’ve breached the subject with the neighbor yet, but it looks as if you’re wisely learning your rights before planting any possible seeds of discord.

If you don’t know a real estate attorney, contact your area bar association for a referral and hopefully, a free initial consult. If you’re serious about moving forward, talk to at least one other attorney first, but proceed quickly because your window may be closing or already be closed. Ideally, your attorney will be experienced in adverse possession cases which, by the way, aren’t especially uncommon.

If you do go the legal path, pull together all the supporting documents: the new survey, your deed, a copy of the neighbor’s deed records (available from city hall) plus your tax records. You’ve probably been paying taxes on that strip all these years, by the way, which would be a plus in your column. Additionally, if your state’s adverse possession statutes happened to change in those 20 years of use — dropping from 25 years to 20 years of possession, for example — the neighbor may be held to the original law.

Nonlitigious options include offering to sell the neighbor all or part of the strip of land, seeking compensation for taxes you paid on it, swapping a like-sized but less-essential chunk of his land that abuts your property, or some combination of those choices. Approach said neighbor cordially, though. Depending on your state law, he may already have the most leverage. I strongly suggest you try to reach a friendly accord before threatening litigation.

No matter how the matter shakes out, it will be best to take care of it before you try to convey the property, because any boundary dispute may be a turnoff for some potential buyers. Good luck!

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