Can I gain title to land by adverse possession if permission was implied?

Tacit permission to use a portion of one's land may undo the user's hopes of an adverse possession claim to title.

Question

I live in a suburban neighborhood and my property borders another home with a tennis court. The tennis court existed there before my neighbor moved in, and she’s never used it. About ten years ago, after realizing that she never used it, I began playing on it with my wife. We never asked her for permission, but she’s seen us use the court multiple times and never asked us to leave. She’s only made statements like, “You guys have fun! Enjoy the weather.” I would like to simply own the tennis court outright, since she never uses it and I’ve been using it every spring and summer for so many years. Can I acquire title by adverse possession?

Answer

A person can acquire title to a piece of property using the legal doctrine of  adverse possession  by meeting five principal requirements – the possession must be open and notorious, hostile to the interest of the owner, actual, exclusive, and continuous for the statutory period.

Here, assuming that the minimum time period set by your state's law on adverse possession (the so-called "statutory period") is ten years, you seem to have met that requirement. Even though you use the tennis court only in the spring and summer months, that would be legally acceptable, since those are the seasons when the true owner would be expected to play tennis.

Your possession also appears to be exclusive (it’s okay to “share” with a spouse, since the true owner would also be expected to share with his or her spouse), actual (you are physically occupying it) and open and notorious (anyone walking by would see that you were playing tennis there as if you owned the court).

But was your possession hostile? One cannot acquire title by adverse possession if the owner gives permission to use the land. Permission is an absolute bar to a claim of adverse possession, since legally speaking, you’ve merely been given a revocable license to use the property. Here, your neighbor has apparently noticed your use of the tennis court, but has never really said anything one way or another about your possession. She did not say, “Get off my land!” But she also did not give you explicit permission to use the tennis court or ask you to sign a lease. Her statement, “You guys have fun! Enjoy the weather” is ambiguous as to whether or not she realizes that she owns the tennis court.

Therefore, you might have a claim for adverse possession. However, keep in mind that your neighbor might contest your claim by arguing to the court that she always knew that you were using her tennis court, and that her words were meant to signal her implied permission. Implied permission, just like explicit permission, will destroy a claim of adverse possession. A court would need to conduct a factual inquiry – carefully considering your neighbor’s statements and perhaps testimony of other witnesses – to determine whether or not permission was implied.

It is not uncommon for ambiguity to exist when it comes to establishing permission. Conversations between neighbors about these issues tend to be awkward, and many would prefer to avoid confrontation and simply allow a neighbor to use land. Given this ambiguity, this might be a simpler dispute to resolve outside of court. You clearly value the tennis court much more than your neighbor does, since she hasn't used it in a decade. Perhaps you could work out a rental agreement where you pay her a fee each season. Or perhaps you could purchase title to the court outright. In either case, you could turn this potentially messy situation into a win-win bargain for both you and your neighbor.

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