[reproduced from Winter 2002 Caution:Horses]
[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.
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
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.
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