Adverse Possession: Do You Still Own Your Property?
For many people, purchasing real estate is one of the largest and proudest investments they will make. Buying land represents hard work and saving diligently. Many of our clients have been shocked to find out that someone else can take your land without your consent and without payment if they use it long enough without objection. This principle, called adverse possession, is codified at Virginia Code § 8.01-236 and in Virginia case law. It stems from English law established during a time when literacy rates were low and records were poor; the best evidence of ownership of land was actual possession. If someone possessed land long enough, he was presumed to be the true owner of it.
Current Virginia law still allows a trespasser to establish an ownership interest in land that is not his after a certain period of time. For example, a trespasser may have a claim for ownership by adverse possession when:
• Fences, decks, or additions that are built on the wrong side of the property line;
• Driveways that are paved too wide or too long;
• A septic system or well is placed on the wrong side of property boundary; or
• Crops are planted or cattle graze beyond the boundary of a field year after year.
These incursions are often unintentional; however, person using your property this way can actually ask a court to declare that he or she now owns those portions of your land through a claim for adverse possession.
To effectively convert title via adverse possession, the party seeking to take ownership of your land must establish in court that he or she has:
1. Had “actual” possession of your property by physically using it in some way;
2. Used the property in a visible (also called “open” or “notorious”) way that is consistent with the way a title owner might use his property;
3. Used this portion of your property exclusively (not shared it with others, including the owner);
4. Used the property in a “hostile” fashion (without your permission and in a way that is at odds with your rights as the title owner); and
5. Used the property in the above-described ways for at least fifteen uninterrupted years. Fifteen years is a long time, but a party seeking title by adverse possession may piggyback or “stack” their time onto the adverse uses of previous owners.
Imagine, for example, that there is a field behind your house. The neighbor on your rear boundary line puts a fence around his yard, sets up a dog kennel near the fence line, and begins mowing the area now inside the fence. You do not say anything to him because the fence appears to be roughly on the boundary line between your properties. When you later go under contract to sell your home, a survey reveals that the neighbor has, in fact, fenced in half an acre of your field. If your neighbor’s fence has been up at least 15 years, he may be able to assert a claim for adverse possession of the area within his fence. If your neighbor sold his property five years after putting in the fence but the subsequent purchaser has kept the fence up for another ten years, the subsequent owner can “tack” his adverse possession onto that of your former neighbor to establish the required 15-year period.
Awareness of these issues is of particular importance if you own pastures, hunting land, or other property that you do not visit routinely. It is important to make periodic visits to your land and walk the property. If you notice that someone has been using your property without your permission, you may wish to contact that person to discuss your boundary lines. An attorney can advise you about how to address these issues and about whether the unauthorized use may continue.
If you are concerned that someone may have been using your property without your permission, contact Logan & Logan to schedule a consultation to discuss your real estate, property rights, and other issues.
This blog post does not render any legal, accounting, or other professional opinion about your particular circumstances. This post does not create an attorney/client relationship. Because of the rapidly changing nature of the law, information can change and this publication may become outdated. Please contact Logan & Logan PLC to discuss your specific circumstances.