Tuesday Tip: Legal Theft By Adverse Possession

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While I handle only personal injury cases and criminal defense cases,  on occasion I am contacted by someone who is particularly irritated by a neighbor who has constructed a fence on the wrong side of the property line which separates the two; the complaining party is mad that he no longer has the use of that property.  In one case I handled long ago, the neighbor had even pulled up the original fence posts and re-placed the fence posts 10-20 feet past his actual property line. 

This bad conduct involves the area of property law known as "adverse possession."  Adverse possession is actually a type of trespass and theft that is actually allowed by the state government.  It basically means the bad neighbor has trespassed openly on that land for so long, not only is the government not going to stop him from doing so in the future, it will actually protect him from any future attempt of the guy holding title to the land to take that land back from him.

The state allows this because land should not remain idle, and if someone fences off your property against your will, you can't just sit by and let them do it for decades before trying to stop them.  There comes a time when you have just waiting too long to enforce your rights.

The possession must be:
  1. Continuous. Use of the property must be continuous for the entire time period with no temporary absences. 
  2. Hostile to the interests of the true owner. This implies that they do not have permission to be on the land. 
  3. Open and notorious. The real owner notices that the trespasser is in possession. The use of the land must be visible. The one who is trying to acquire that land must show he is "openly and notoriously" occupying the land for a specified number of years, and treating that land as though he owns it.
  4. Actual Possession. They must be using the land as an owner would. They have to be making a change to the state of the property such as mowing, planting, harvesting, mining, fencing, etc.) 
  5. Possession must be exclusive, so there is no confusion as to who acquires the rights to the property once the time has run.
Adverse possession does not work on property owned by the public. There are also cases that do not allow adverse possession to take effect including: disability, insanity, infancy, and imprisonment. 

Adverse possession, in a way, is like homesteading. To gain the land, certain requirements have to be met. However, in homesteading, no one can be the owner of the land, and the first person to use it properly owns the property.

In the state of Idaho, there are a couple more additional requirements: 
1. The person claiming the land must have substantially enclosed the land (usually that means putting a fence around a sufficient portion that the world knows what land is being claimed, just by looking at it);
2. The land must be cultivated or improved (usually that means putting a building on it, watering it or growing something on it other than weeds);
3. The one claiming adverse possession must occupy that land, to the exclusion of others, for 20 continuous years;
4. The one claiming adverse possession must pay property taxes on that land for 20 continuous years;
5.  There cannot be, on file with the county land records, a document showing that you are occupying that land for a purpose other than ownership.  In other words, you can't claim the property is yours, via adverse possession, if you have been on that property for 20 years under a lease agreement with the real owner.

The bottom line: It is not enough to be mad.  It is not enough to wag your finger and complain about your neighbor's bad conduct.  If you want to keep that bad neighbor from owning your sliver of land that he has appropriated to his own use, you had better sue him before it is too late.  You may need a court order establishing that he is a trespasser, not the new owner of the property.  

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Allen Browning is an attorney in Idaho Falls, Idaho who handles personal injury and criminal defense. He has over 30 years of experience and handled thousands of cases. Allen work with cases from all over Idaho. Call (208) 542-2700 to set up a free consultation if you are facing legal trouble or you have been involved in an accident.

Also, check out browninglaw.net for more information about Allen and Browning Law.

Allen Browning can help with all personal injury claims including motor vehicle accidents, serious and disabling accidents, and wrongful death claims.

Allen Browning is an Idaho Falls attorney who can also help with drunk driving (DUI) , Felony, Misdemeanor, Domestic Violence, Drug Crimes, Theft, Juvenile Crimes, Violent Crimes, and Probation/Parole Violations. He is one of the most experienced and successful criminal defense attorneys in Idaho.
Allen is able to provide his services if the incident takes place in the following Idaho Areas: American Falls, Arco, Blackfoot, Burley, Driggs, Idaho Falls, Malad City, Pocatello, Rexburg, Rigby, Salmon, St. Anthony, Twin Falls, Bannock County, Bingham County, Bonneville County, Butte County, Cassia County, Clark County, Fremont County, Jefferson County, Lemhi County, Madison County, Oneida County, Power County, Teton County, and Twin Falls County.    

Sources for more information:
https://en.wikipedia.org/wiki/Adverse_possession#United_States

 http://www.legislature.idaho.gov/idstat/Title5/T5CH2SECT5-210.htm

https://www.law.cornell.edu/wex/adverse_possession

http://www.nlrg.com/property-law-legal-research/bid/82066/PROPERTY-LAW-UPDATE-City-Must-Face-Adverse-Possession-Claim-At-Least-for-Now

http://statelaws.findlaw.com/property-and-real-estate-laws/details-on-state-adverse-possession-laws.html

Richardson, Sally Brown. "Abandonment And Adverse Possession." Houston Law Review 52.5 (2015): 1385-1430. Academic Search Premier. Web. 21 July 2015.

https://ohioaglaw.wordpress.com/2013/08/30/ohio-court-upholds-jury-verdict-against-adverse-possession-claim/

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