on September 26, 2017
Does your neighbor’s fence fall on your side of the property line? Did that garage get built on your land? If your neighbor encroaches on your land, you may be subject to losing that portion of your property by adverse possession.
Adverse possession is a common law doctrine through which ownership to property can be acquired by an unlawful possessor exercising possession for twenty years of adverse, continuous, exclusive and uninterrupted use of land such that the lawful landowner has notice that the possessor claims title to the property.
This little-known legal doctrine frequently affects densely populated residential areas where neighbors come and go and property surveys are the exception to the rule. Recently, the New Hampshire Supreme Court had occasion to review its adverse possession jurisprudence in the case of O’Malley v. Little.
In that action, an adverse possessor permanently acquired title to a strip of real estate in Hampton Beach, in a densely packed area of valuable homes near the beach. In 1993, the plaintiff installed a chain link fence between her lot and her neighbor’s lot. As it turned out, the fence was installed across the property line on to the neighbor-defendant’s land. After installing the fence, the adverse possessor-plaintiff frequently used the encroaching area for parking cars, gardening, and other ordinary uses incidental to ownership of land.
In 2010, new neighbors learned that the fence encroached on their land. In response, they called the plaintiff and informed her that her fence encroached and needed to be removed. The plaintiff refused to move the fence. The defendant asserted that he took other action to demonstrate to the plaintiff where the property boundary existed and that the plaintiff’s fence encroached on his land. Nothing else occurred until 2013, when the defendant emailed the plaintiff again and requested the fence be removed. In correspondence, the defendant offered the plaintiff a license to use the encroaching area. Again, the plaintiff refused. Accordingly, the defendant threatened to take action to relocate fence if the plaintiff did not do so herself. The defendant never took such action.
In December of 2013, the plaintiff filed suit to “quiet title,” or officially take legal possession of the encroaching area inside the fence line. In that suit, the defendant asserted that it “ousted” the plaintiff from possession of the disputed land, and thus terminated the adverse possession, through the repeated assertions of ownership from 2010 to 2013. The court disagreed.
Instead, the New Hampshire Supreme Court quieted title in the encroaching plaintiff, finding that “ousting” an encroaching adverse possessor effectively requires more than mere assertions of title. Rather than asserting title, the original owner must take affirmative steps to put the adverse possessor on notice that the lawful owner intends to reassert control or dominion over the disputed area. Having failed to take any such actions, the original owner lost legal title to the disputed area.
While little-known and infrequently asserted, losing title by adverse possession is risk property owners should be aware of, particularly in densely settled areas where unlawful encroachment by neighbors presents a significant risk to property. If you’re concerned that your neighbor encroached upon your land, do your homework. Review your plot plan and deed. Engage a surveyor if you’re unclear whether an encroachment occurred. Then take steps to reassert control over the land encroached upon by your neighbor. If you’ve found that your neighbor encroached on your land, do not let time pass you by. Instead, contact an attorney to help preserve your rights in your land.