I planted a tree on property I considered mine, until a survey showed otherwise. Who owns the tree?

You may have a legal claim over not only the tree, but the land it sits on, using a doctrine known as adverse possession.

Question

I’m an active gardener, and years ago, I planted an apple tree in my backyard. Ever since, I’ve been taking care of it, watering it, pruning it, and harvesting its apples. My neighbor never said anything. But last month, he had a survey done of his property and it turns out, the tree is on his land. It was my error. But now, he’s claiming he owns the tree. This hardly seems fair. What can I do?

Answer

Your frustration is understandable. You’ve been caring for this tree for years, investing time and money into its growth and health, and now you feel you deserve to bear the fruits of your labor – literally.

You may have a legal claim over not only the tree, but the land it sits on, using a doctrine known as adverse possession. Through adverse possession, a landowner such as your neighbor can actually lose his ownership of a portion of his land if a trespasser, such as yourself, occupies that area of land in a manner that is hostile, actual, open and notorious, and exclusive and continuous for a certain period of time established by statute.

Here, it seems you’ve established the first few factors – you exclusively used the land involving the tree, did so openly and against your neighbor’s interest, and were never interrupted by your neighbor asserting a complaint or claim of ownership. Courts in many jurisdictions have held that planting flowers or trees on property constitutes occupation for the purposes of adverse possession.

The key question becomes: How long ago did you plant the tree? Every state has a different statutory period for establishing adverse possession. Connecticut is 15, New York is 10, and Hawaii is seven, to give just a few examples. If you cannot establish adverse possession, the land, including the tree, will most likely be deemed your neighbor's, by law.

Keep in mind, hiring a lawyer to actually establish your “ownership” of the tree will be expensive. This would require a judicial order, which means suing your neighbor seeking a declaratory judgment. By the same token, it will also cost your neighbor to hire a lawyer to seek a court order precluding you from accessing the tree and taking its fruit.

A less stressful, expensive solution might be to strike a deal with your neighbor whereby he pays a certain amount of upkeep costs (or reimburses you for some of your maintenance costs to date), and you give him a certain percentage of the fruit. Most likely, the value of the tree and the apples is not worth litigating, and not worth further poisoning your relationship with your neighbor. If you do strike a deal like this, make sure to put it into writing, so that you have a clear record of your respective rights and responsibilities.

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