University of Vermont AAHS

HorseLaw

Watch Your Fences: A Horseman’s Guide to the Law of Adverse Possession


by
Robert O. Dawson
Professor of Law
University of Texas School of Law
AAHS Secretary/Treasurer

  [reproduced from Winter 2002 Caution:Horses]

            So, you own real estate—land.  How do you know what land you own?  Well, you have a deed that says you own property and it describes the property you own.  You got the deed from a person who owned the property and sold it to you.  You even remember buying a special insurance policy that says the person who sold you the property had a right to do so.  The deed is in your safe deposit box at the bank and has been recorded at the county courthouse.  What more could you want? 

            Legal Boundaries.  If you look at that deed, it describes your property, but does so in a foreign language.  It describes the property starting with a surveyor’s stake and then talks about compass directions and feet of distance to other markers.  These measurements should end where they began—like running the bases after hitting a home run—so they completely surround the property that is the subject of the deed.  Those words legally identify the property you own. 

            Now, suppose you want to use your deed as a map to walk the perimeter of your property—just to enhance you sense of ownership.  Unless you are a surveyor or have one at your elbow, you will almost certainly become hopelessly lost, at least after the little plastic surveyor’s flags tied to wooden stakes or bushes have disappeared--assuming the property was surveyed for the sale. 

Physical Boundaries.  You cannot use your deed to locate the physical boundaries of your property.  Yet, you know where those boundaries are.  How?  You were told where they are by the real estate agent who brokered the sale or by the previous owner.  You were told the property line starts at the corner of a fence and the state highway and then runs east to west along the state highway, then south along the county road until it reaches a fence that runs west to east next to the Smith place until it reaches Dickerson Creek.  It then follows the creek (in the middle) until it reaches a fence that runs south to north next to the Johnson property and finally reaches its starting place at the state highway.  If there was an earlier survey of the property, you should have been given a little drawing of the boundaries of the property you have purchased.  Such a drawing is simply a geometric illustration of your property and ordinarily does not include physical details, such as buildings or fences.  You might also find survey drawings at your local taxing authority—sometimes on its web site.  Those are likely also to include outline sketches of buildings, but not fences. 

If the property was surveyed for your purchase, it is good to familiarize yourself with its perimeter before the surveyor’s flags disappear.  Sometimes, property is not surveyed prior to transfer of ownership. That is true if you inherited the property or if there was an earlier survey along the same property lines you wish to use so there seems no need for a new and expensive survey.  Transfers of ownership without a survey are particularly vulnerable to misunderstandings about boundaries. 

            Most of the time, the property as described in your deed will be pretty much the same as the property you thought you bought as described by the previous owner or her agent.  Sometimes, however, there is a discrepancy of more than trivial dimensions.  When that occurs, you have a problem.  The discrepancy probably is just a mistake—nobody meant to cheat anybody.  It is just that at some point in the sequence of ownership someone made a mistake in where they believed the legal boundary line physically to be and that mistake was passed on from owner to owner.  

Often, the problem occurs because someone got the idea that a fence line is on the boundary of the property, while in reality it is to one side of that boundary or another.  Some fences are intended to be boundary fences and some are intended to be only livestock exclusion or containment fences but not to mark the property’s boundary.  An owner has no legal obligation to fence in the boundaries of his property and many do not. 

            An Illustration.  Suppose you purchased 100 acres described in your deed by the lines A-B-C-D-E-F-A.  Suppose, further, that a fence runs from B to E and you were mistakenly told that fence is the eastern boundary of your property.  Suppose, finally, that your neighbor, Johnson, also owns 100 acres, thinks she owns the area bounded by B-C-D-E-B (because that is what she was told by the seller of her property) and has built a horse barn on that area.  She also uses that area to graze her horses and has fenced off paddocks for that purpose. You are paying property taxes on the full 100 acres you own—including the 10 acres east of the fence--since the taxing authority bases its land taxes on deed records.  Johnson is paying taxes on her 100 acres, but not on the 10 acres in question, although she believes she is paying taxes on those acres.  She is, however, paying property taxes on the barn she built on that property because the taxing authority also believes the fence is the boundary.  Part of the problem is that nobody can just look at the property and accurately determine whether he is looking at 90, 100 or 110 acres.  There is a disconnection between the legal description of the property and its physical appearance. 

            The Basic Rules of Adverse Possession.  A person who occupies property can acquire legal ownership of that property by continuous, open and adverse occupation of the property for a specified period of time.  In its most extreme form, a person who trespasses on your land, establishes a residence as a squatter, and remains there for the applicable period of time can without paying a cent to you obtain legal ownership of the property occupied.  Although that scenario is possible in a number of states, the vast majority of adverse possession cases in fact result from legal defects in deeds or good faith mistakes in understanding the physical boundaries of property described in deeds, as in our example with your neighbor Johnson, rather than simple theft of real estate. 

            The period of occupancy required to acquire ownership by adverse possession varies significantly from state to state from a high of 25 years to a low of five years.  As one travels from east to west in America, the occupancy period required by state law tends to decrease.  The idea behind adverse possession is that if the owner of land cares so little about what is happening on the land that he or she permits another to occupy the land for so extended a time, he should not be permitted at a late date to asserts ownership rights and upset the expectations acquired by the occupants that their use will remain undisturbed. 

            Some states permit trespassers (squatters) to acquire ownership by adverse possession, while others require the possessor to be acting under a belief that he or she owns the property under a deed.  Some states require that the possessor must pay property taxes on the land, while others do not.  An occupant can add the period of his or her occupancy to that of earlier occupants from which he believed he purchased the land in question.  In our example, if Johnson had purchased her land from Green five years ago and Green had occupied the ten acres mistakenly for five years, Johnson could claim ownership in a state with a ten year occupancy requirement. 

            Open and Adverse Possession.  Not just any occupancy will do.  It must be open, like occupancy that would be employed by an owner.  The requirement of openness is intended to place the owner on notice of the conflicting use of his land by another.  If the owner does not care enough about his land to discover such uses over such a long period of time, then he deserves to lose the land.  The occupier will make more productive use of the land than such an uncaring owner and productive land use benefits society as a whole. 

            The occupancy must be adverse to the owner.  The occupant doesn't have to know that the occupancy is adverse and usually will not because he will mistakenly believe he owns the land he is occupying, as in our illustration.  If the person occupies the land with the permission of the owner, that is not adverse and ownership cannot be acquired through that occupancy. 

Intensity and Continuity of Use.  The use must be one that would be normal for an owner to make under the circumstances of the use.  In some areas, grazing cattle or horses might be a sufficient use, while in other areas crop farming might be required.  It is not necessary that the person claiming by adverse possession must live on the property, only that he use the property in a manner that would under the circumstances be expected of an owner.  

Occupancy must be continuous, not broken up into disconnected, occasional use.  Thus, camping in the woods of another periodically would not be possession but seasonal occupation of a mountain area for summer residence might be sufficient for adverse possession of such an area if winter occupancy is not feasible.  In other areas, year-round occupancy would be expected of an owner and would therefore be required of the pretender. 

How Can You Protect Yourself from Adverse Possession?  First, be aware of who is using your land, for what purposes and for how long?  Second, take a trip around your property every few months—it will do your soul good and may prove legally helpful.  You might want to take a surveyor’s sketch or one from the taxing authority with you on one of those trips just to see if the boundaries as you believe them to be correspond to the lines in the sketch.  Third, if you discover some use that you think might be adverse, address the problem calmly, not forcefully.  Try to meet the users and find out what they think their right is to use that land they are using.  Fourth, if you are sure they are occupying your land without authority, then order them to leave.  You might want to enlist the Sheriff’s aid in doing so, since often such a person is committing an offense of criminal trespass.  The Sheriff can eject the trespassers from the land without also arresting them if that is what you wish.  Fifth, if you think there is a good faith boundary error by your neighbor, it might be worth hiring a surveyor to re-mark the boundaries.  Tell you neighbor what you are doing—you simply want to establish the property line for the benefit of both of you. 

For More Information.  The Equine Law and Horsemanship Safety web site, maintained by the American Association for Horsemanship Safety, contains some opinions from American appellate courts that deal with adverse possession involving horsemen.  You can find those opinions and others relevant to horsemen involving land use disputes at www.law.utexas.edu/dawson/.  From the home page, go to Law Cases for Horsemen and then to Land Use Disputes.


Return to Top of This Page
Return to HorseLaw Page