Can an adverse possession dispute with a neighbor be mediated?

A mediator can help a homeowner and neighbor generate some strategies for compromise over use of a piece of property, thus avoiding litigation.

Question

My neighbor and I have lived next to one another for many years, and we’ve always had a very strong relationship. But we’re currently in a contentious dispute about his adverse possession claim over a portion of my yard. There’s no clear dividing line between our backyards, and for many years, he’s been gardening various tomatoes plants, herbs and spices. I never realized before, but apparently, his garden is actually on my property. Our lawyers have exchanged letters at this point, and it seems like he might sue me for adverse possession over the land, in which case I’ll have to counterclaim to eject him from my property. I’ve heard that mediation can sometimes resolve disputes between neighbors, but does it make sense for adverse possession claims?

Answer

Mediation can be an extremely effective way to resolve disputes between neighbors. Mediation is a process by which you and your neighbor – and sometimes your lawyers as well – sit down with a third-party neutral mediator. That third-party neutral is often a lawyer or retired judge, but might also be a psychologist or social worker. The mediator’s job is to help you and your neighbor resolve your conflict without costly and time-consuming litigation.

How can an adverse possession dispute, like the one you describe, be mediated? A mediator might help you and your neighbor to generate some strategies for compromise. Perhaps his garden can remain where it is, but he pays you monthly rent. Perhaps you agree to split ownership of that portion of land equally. Perhaps you subsidize the costs of his garden, but get a certain percentage of his tomatoes, herbs, and spices. Or perhaps you simply agree to sell him that portion of your property for a sum of money.

All of these solutions are more creative than what a court might decree in winner-takes-all litigation.

One unique feature of adverse possession claims to keep in mind, however: Adverse possession affects title, which is reflected in your county clerk's office. Any creative arrangement involving bartering or rent that you and your neighbor devise in mediation wouldn’t be binding on future owners unless you actually make a change to those title records. Title records would still reflect that you are the owner of the garden area, unless your neighbor can convince a court otherwise.

Thus, you should both be aware that the issue of the garden might arise when either of you seek to sell your respective homes. A buyer might conduct a land survey, and would definitely want to buy the property with a clear sense of who owns the garden.

This isn’t necessarily a deal-breaker between you and your neighbor. Perhaps your neighbor just wants assurance that he can continue to garden as long as he lives in the home; he might not care about enlarging his property for the sake of gaining a slightly higher purchase price.

In your situation, it seems that you two have had a strong relationship over the course of many years, and that you’ll continue to live next to one another for years to come. Therefore, you both have an interest in not being torn apart by contentious litigation. To read more about how mediation can be used to resolve conflicts between neighbors, see Nolo’s page on Mediating or Litigating Neighbor Disputes.

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