Can I make an adverse possession claim against my family member (a cousin)?

Courts will usually assume that a family member gave permission for use of the property, thus defeating any claim to title via adverse possession.

Question

I live in a small town with my wife, and my cousin Bob and his family owns the home next door. Bob and I come from a large family, and don’t have a particularly strong relationship – we just happen to live next to one another. For about twelve years, I’ve been using a patch of land that’s technically part of his property, for gardening my tomato plants. He’s never asked me to stop, or said anything at all about my use of his land. Because I might sell my property one day, I would love to be able to acquire official title to that bit of land to increase the value of my home. Can I acquire it through adverse possession?

Answer

You seem to have met all of the basic legal requirements for acquiring title to a piece of land through the doctrine known as adverse possession. Your use of the garden has been open, hostile, exclusive, actual, and continual for the statutory period.

So what’s the problem? Many courts do not believe that family members can make adverse possession claims against one another.

The hostility requirement means that the person claiming possession of a disputed piece of property must demonstrate to a court that his or her possession is an actual infringement upon the true owner’s property rights. Courts often assume that members of the same family do not “infringe” on one another’s property. Siblings, cousins and parents generally give one another permission, express or implied, to use one another’s property.

A court might assume that Bob gave you implied permission to come onto his land, and thus your use of the garden was not truly hostile; Bob merely assumed that you were “borrowing” it for your tomato plants, rather than truly “possessing” it.

For you to successfully overcome that presumption, you would need to establish that, even though you’re related by blood to your cousin Bob, he never gave you express or implied permission to use that patch of land. You will need to prove, for example, that you rarely interact with one another in a social context, and that Bob never intended to allow you to use his land. Remember, permission is an absolute bar to a claim of adverse possession.

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