A few years ago, my neighbors built a wooden fence around their home. I have a great relationship with my neighbors. But my wife and I just realized that their fence actually was built three feet onto our property. He doesn't actually use those three feet on "his" side of the fence, but now we can no longer access them. I’ve heard that he can now claim ownership over that land through adverse possession. Can he really take our land like that, even though he's not doing anything with those three feet of land?
It’s true that adverse possession is a legal means by which a trespasser, often a neighbor, can establish title to a piece of property. To acquire title to property by adverse possession, the possession must be open to the world, hostile to the interests of the true owner, exclusive, and continuous for the statutory period.
The precise statutory period during which the person must control the land varies from one state to another – for example, it's 20 years in Maine, but only ten in Mississippi. A trespasser would need to go to court, and prove each element of that claim.
In your situation, your neighbors have constructed their fence in the light of day, for anyone to see, and are occupying those three feet of land exclusively. This means that their use of the property probably meets the hostile, open, and exclusive requirements. The fact that they're not literally, actively "using" the three feet land would have no effect on the analysis, since they've effectively taken control of the strip with the fence.
Their problem in making a claim for adverse possession, however, is that they haven’t met the required statutory period. No jurisdiction would grant adverse possession to someone after occupying a strip of land for only three years.
But even if your neighbors would lose a fight over title in court (for the next several years, at least), you still face a practical problem: Eventually, you’ll want to sell your home, and every square foot of property will count. And sooner or later, your neighbor will meet the statutory requirement and be able to legally claim title. Even if you don’t particularly care about using that strip of land, there is a great deal of value on the line.
So what should you do?
Sure, you could hire a lawyer and sue the neighbor for trespass, but this would likely destroy the cordial relationship you currently enjoy.
A far better solution would be to have a conversation, and see whether the neighbor would be open to exploring the cost or difficulty of simply moving the fence. They might be embarrassed to learn that they built the fence in the wrong place, and apologetically offer to move it at their expense.
If the cost of moving the fence is prohibitively expensive, and you don’t particularly care about using those three feet of your land, you can still prevent the neighbor from being able to eventually claim adverse possession by giving explicit permission to “borrow” that strip of land. Remember, for a trespasser to establish a legal claim of adverse possession, their possession must be hostile to your interests. If the possession is with your permission then, by definition, it cannot be hostile.
One of the most common ways to establish that you gave your neighbors permission is to have them sign a simple rental agreement. For a nominal amount (say, $15 per year), they can keep their fence over the property line and use that three-foot strip. So, if in 20 years, your neighbors run to court to claim adverse possession, you’ll be able to defeat their claim by introducing evidence of the rental agreement and annual payments. This shows that they cannot meet the hostility requirement to gain title.
Of course, you'll want to write that agreement with a limited term, so that you can readily undo it if and when you sell the property, at which time the purchasers may be less interested in granting the neighbors such permission. Nolo's free sample rental agreement provides for this.