My father has been living in his current home for over 25 years. He has fenced, mowed and maintained all of this property for that 25 years. He even built his greenhouse/workshop at the back of the property over 18 years ago. Recently the neighbor at the back of the property passed away and their children are wanting to sell their mom’s home.
The problem is their survey of their property includes about one-third of the back of my father’s property, including his greenhouse/workshop. The neighbor’s children want us to pay for that property or give it back. What can we do?
Jack D.
Real property, such as land, is governed by each state’s statutes and usually there are several criteria that differ from state to state which means you should consult a real property attorney in the state where the land in question is located. Real property is covered by the Statute of Frauds and requires that any property changing hands be done in writing: except when Adverse Possession is involved.
The accepted definition of Adverse Possession, according to the Wex Legal Dictionary, is a doctrine where a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.
The common law requirements have evolved over time, and the articulation of those requirements varies somewhat from jurisdiction to jurisdiction. Typically, adverse possession, in order to ripen into title, must be:
(1) Continuous; this means continual possession by a single adverse possessor, or by successive adverse possessors so long as a legal relationship between two parties based on contract, estate, or other lawful status, that confers certain rights or remedies exists between them.
(2) Hostile to the interests of the true owner; this is the adverse part of adverse possession.
(3) Open and notorious, so as to put the true owner on notice that a trespasser is in possession.
(4) Actual, so that the true owner has a cause of action for trespass, on which the true owner must act within the statute of limitations.
(5) Exclusive, in order that there be no confusion as to who acquires title once the time has run.
A typical statute will require possession for 7 years, if under color of title, or 20 years, if not. In Oklahoma the statute of limitations for adverse possession is 15 years.
Let’s apply the requirements for adverse possession to your father’s property. First requirement is continuous possession. According to your statement your father has owned his property for over 25 years and he has fenced, mowed and maintained the property in question for all of that time.
Second, your father must have been “hostile” to the interests of the true owner. You stated he fenced the disputed property over 25 years ago. That will be considered “hostile” as the fence prevented the true owner from using that property.
Third, his possession must be “Open and Notorious” so the true owner knew he had taken possession of the property. The neighbor lived behind him so they were always able to see he had fenced in their property so they knew he had possession.
Forth, he must have actual possession so the true owner had a cause of action for trespass which your father did by fencing in the property and building his greenhouse on her property over 18 years ago.
And fifth, his possession must be exclusive so there can be no confusion on who is using the property. He mowed, maintained the property continuously for the past 25 years as well as built a structure on the property. There should be no doubt who is claiming the property as their own.
The time for your neighbor’s children to require you to either pay for the property or give it back is long past the usual 20 year requirement for adverse possession. In Oklahoma the statute of limitations for adverse possession is 15 years, but can vary in other jurisdictions.
Adverse possession is not interrupted just by telling them or sending them a letter or giving notice to the occupant that the true title owner is someone else unless the true landowner takes action to remove the adverse claimant. Action such as removing your father’s fence and greenhouse, blocking his access to the property or putting up their own fence on their property line to reclaim the property before the statute of limitations has expired.
In order for the children or their mom to have had a chance to get the property back in Oklahoma, they would have had to file a lawsuit charging him with trespass before the statute of limitations had expired.
Adverse possession continues to frustrate attorneys and property owners alike. The usual adverse possession is not the next door neighbor but on property the owner rarely sees or uses.