Among the many topics they teach in the first-year property class at law school is the doctrine of adverse possession.
Many may have heard the term, and may be aware of its basic effect, but its real-world application is perhaps a bit more elusive.
Adverse possession provides that a party obtains legal title to real estate by possessing in for 10 years, assuming all of the requisite elements of that possession are met.
To acquire title to real estate by adverse possession, a claimant must file suit and allege and prove in court by a preponderance of the evidence that they have possessed the real estate and that the possession was:
1. Hostile, that is, under a claim of right.
3. Open and notorious.
5. Continuous for a period of 19 years before the commencement of action.
The case we studied in first-year property class to illustrate and understand its application was a situation of platted, numbered lots – as is done in untold numbers of residential developments nationwide – that surrounded a lake property, complete with cabins, docks, barbecue grills, bird feeders and all of the wonderful things that accompany lake life.
All was peachy keen among the lake dwellers of this development until one day somehow, it came to be determined that somewhere along the line a mistake had been made in reading the plat, doing the title work and preparing the deeds to the lake lots and cabins over the years, and that in fact each party had received a deed not to their property but to the property of their next-door lake neighbor, and their next-door lake neighbor on the other side held the deed to the property they occupied.
Yes, the deeds were all one lot off. Hmm, sticky.
But all was not lost, and nobody had to move next door. Instead, the problem was solved by a legal action resulting in a court judgment, that title was vested as to each lot and cabin in the party who had occupied it hostilely, under claim of right; actually; openly and notoriously; exclusively; and continuously, for the requisite period, despite the erroneous deeds.
Adverse possession can also be a basis to adjust property lines to align with where people have observed them, even though they don’t match up with the deeds.
Or, as the Missouri Supreme Court said in a leading case on the topic: “When a border, even though erroneous, is observed by all parties as the boundary for the statutory period, it becomes the true boundary through adverse possession.”
This is common in a situation where a fence row or a private road or a driveway or a shed or barn that is in place for many years turns out to be on someone else’s property.
If in fact the basic statutory elements can be proven to establish adverse possession, then the court will decree that ownership is vested in the party who has exercised dominion under the enumerated circumstances for the requisite period.
The idea behind this doctrine, I believe, is to avoid “gotcha” disputes, whereby after many years of peaceful existence and common understanding, someone discovers that they can try to make someone move a fence, move a barn, move a driveway or private road, or move out of their house or lake cabin, because of a longstanding misunderstanding that had been shared by all parties for many years.
Ken Garten is a Blue Springs attorney. Email him at email@example.com.