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Real Property: Property Owners Beware Of Adverse Possession

By Bashian & Papantoniou
February 23, 2011

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Most property owners are unaware of the concept of  adverse possession .  In short, adverse possession is a method of obtaining title to land (without compensating the owner) based upon the claim of the person in actual possession of the land that he, she or it had been in actual, continuous, exclusive, notorious and adverse possession of the land under a claim of ownership for a period of 10 years or more (the factors may vary from state to state).  So, for example, if an adjacent land owner made improvements on to his home and placed a permanent building which was located partially on your property, and if 10 years pass, he could have a viable claim against your property and you could lose that parcel of land.  This was the case in Best & Co. Haircutters, Ltd. v. Semon, where the plaintiff was deemed the owner by adverse possession of a disputed parcel lying between the plaintiff’s parking lot and the parking lot belonging to the record owner of the parcel.  The plaintiff had to demonstrate that it usually cultivated, improved, or substantially enclosed the land.  In practice, adverse possession is disfavored as a means of gaining title to land, and therefore all elements of an adverse possession claim must be proved by clear and convincing evidence.  The plaintiff owned a certain real property known as tax lot 204. The disputed parcel was owned by the defendant. The disputed parcel was located between the plaintiff’s parking lot and the defendant’s parking lot. In the early 1970’s, a “gully” comprised some, if not all, of the disputed parcel. The plaintiff presented testimony at trial that it caused the gully to be filled and graded in approximately 1974 or 1975. Thereafter, the plaintiff maintained and used the disputed parcel as a parking area immediately adjacent to its existing parking lot  for the required period .   The Court held that in light of the character, condition, location, and potential uses for the disputed parcel, the plaintiff proved by clear and convincing evidence that it usually cultivated or improved the disputed parcel and that its possession of the disputed parcel was actual, open and notorious, exclusive and continuous for the required period, and hostile and under claim of right which satisfied the test for adverse possession.  Protect your property, contact the attorneys at  Bashian & Papantoniou, P.C.  if you have any questions regarding your property rights.
Category: Real Estate

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