Is Our Neighbor Aiming to Assert Adverse Possession?

No matter how nice the neighbor, as a homeowner, you have every right to be concerned about possible adverse possession claims.

Question

We live next to a lovely young woman who is an active gardener. We’re friendly with her, and have never had any sort of dispute. We’re noticed a couple weeks ago, though, that she seems to have planted a bunch of flowers on our side of the property boundary. Should we be worried that she is trying to take ownership over the property through adverse possession?

Answer

The demarcation between property lines is often unclear. Especially where there are no fences or bodies of water separating one property from another, it is easy enough for people to be uncertain about precisely where their property ends and their neighbor’s property begins. Chances are, your neighbor is not trying to expand her “territory” maliciously or sneakily. More likely, she is simply not as aware as you are of the boundary line.

That said, as a homeowner, you have every right to be concerned about possible adverse possession claims. Adverse possession allows a trespasser to gain ownership over a part of your land if her occupation and use of that land is hostile, actual, open, notorious, and continuous for the statutory period in your state. Most state's laws require such occupation for at least seven years, though it varies between jurisdictions. Read more about how a trespasser can establish an adverse possession claim.

Courts in many states have held that flowers and trees planted by a neighbor can indeed meet the requisite elements of an adverse possession claim, such that the seemingly innocent gardener can, over time, obtain affirmative ownership over a portion of your property. When you eventually seek to sell your property, this will be revealed on land surveys conducted by potential purchasers, and could lower your sale price. (After all, it makes your property smaller!)

In your situation, the good news is that you seem to have noticed your neighbor's presence on your land fairly quickly. This timing matters, since she would need to have possessed the land with her flowers for the statutory period – likely seven years – in order to claim ownership.

What should you do now? There are two primary options.

First, you could alert your neighbor to the situation orally and ask her to unearth the flowers and move them to her property. This might seem drastic if you are on friendly terms.

Second, you might take measures based on the requirement that, under the legal definition, adverse possession must be “hostile” – in other words, without permission.

So, you could prepare a simple form agreement stating that you, as owner, are giving your neighbor permission to use the land for that particular purpose. You would sign it, and then she would need to sign and acknowledge it in writing. Your permission agreement would state that the land is yours, and that you can revoke permission at any time. This would help to defeat any potential claim of adverse possession your neighbor might have.

Or, you could allow your neighbor to keep her flowers on your property but have her sign a nominal rent agreement. Rental agreements are a useful method of making sure the trespasser takes your arrangement seriously and is prevented from establishing adverse possession. If you have a neighbor sign a rental agreement, by definition, you are giving her permission to keep the flowers there. The rent can be nominal, like $10 or $20 per year, but it would establish a paper trail showing that her possession of that piece of your land is not ownership. It is important for you to maintain the rental agreement as well as the checks that she uses to pay you.

Should there ever be a question about your ownership rights, your permission or rental agreement documents will help settle the question.

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