Even within the vast expanses of Nebraska’s Great Plains, you likely have two or three neighbors whose land borders yours. While it may seem surprising, those neighbors might be able to gain legal title to pieces of your property under a legal concept called adverse possession. And while less likely, the law also allows an unknown trespasser to squat on your land and develop the same type of claim to ownership.
While many flavors of disputes can arise between Nebraska neighbors, perhaps no dispute is as concerning as one that could strip you of your ownership of a portion of your property. As a homeowner in the Cornhusker State, your house is likely your single most valuable asset. You should, therefore, do everything in your power to protect it.
To make sure that your land remains yours and that a neighbor can’t claim a portion of it, you should familiarize yourself with Nebraska’s rules on adverse possession. There may also be times when you yourself need to assert an adverse possession claim, over land that you feel, after several years, that you’ve developed a right to use and want to continue using.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger, but more often a neighbor—to gain legal title over the land of the property owner.
The concept developed in early Britain. Archaic though its roots might be, the law’s continued utility is to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make the trespasser leave would actually create hardship.
Adverse possession in Nebraska is controlled by statute (laws passed by the state legislature), but also by the state courts.
Importantly, the burden of proof to establish a claim of adverse possession is on the trespasser. The legal holder of title has the presumption of ownership until the adverse possessor can meet that burden. In other words, it is entirely the trespasser’s job to prove that the judge should give him or her ownership over the land. Just making the claim and hoping the other side won’t do an adequate job of defending against it is not likely to win the day.
There is no single statute in Nebraska that articulates the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors, over many decades.
As in most states, adverse possession in Nebraska is established from the nature of a trespasser’s possession and the length of time the person possesses the land. A trespasser’s possession must be:
A hypothetical is useful to understand the effect of these five factors. Pretend that Jeff and Florence live next to one another in Omaha. There is no dividing fence or boundary between their yards. Jeff builds a potting shed that is actually on Florence's side of the property, covering about ten square feet of earth. Florence doesn’t say anything. Jeff uses the potting shed as if it were on his own land. He does this for over ten years. Under the rubric described above, Jeff can probably establish that he “owns” the land on which he was encroaching. Florence could have stopped Jeff by asking, over those ten-plus years, that he remove his potting shed, or insist that he sign a rental agreement. But Nebraska courts won’t let Florence suddenly eject Jeff after she sat on her rights for at least a decade.
Some states care whether the trespasser knew that he or she was trespassing. Nebraska does not. The doctrine of adverse possession protects someone who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of others for the specific purpose of acquiring title.
In other words, in Nebraska, there is no requirement that the entry and continued possession of the property be done with knowing or intentional hostility. That said, a claim of right—that is, an argument from the trespasser that he actually owns the land—may be defined as “hostile” for purposes of showing a claim of ownership by adverse possession. For example, if Jeff believes that his property deed actually gives him the right to occupy that strip of Florence's land, he is still occupying the land with hostility, even though he genuinely believes he has a right to it.
Thus, any entry and possession for the required ten years that is exclusive, continuous, hostile, actual, and open—even if under a mistaken claim of title—is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether Jeff built the potting shed knowing that he was on Florence’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
What should you do if you spot a trespasser or a neighbor encroaching on your land?
Chances are, it’s an innocent mistake on the person's part. Given that, your first step should be to nicely ask the trespasser to move and to remove any structures or property that are on your land. More often than not, the person will comply.
If the trespasser does not comply, you may be forced to consult a lawyer and bring an action to quiet title—a legal method for determining who holds title to land. In an action to quiet title, you’re asking a Nebraska state court judge to issue an order declaring that you, and not the trespasser, are the true owner of the land.
A quiet title order is particularly helpful if you are intending to sell your property, and will need to reassure potential buyers about its boundaries and rightful ownership.
Land held by Nebraska state and municipal government entities are generally immune from adverse possession actions. In other words, title to public lands generally can’t be acquired by adverse possession as against the state of Nebraska. So, you won’t be able to expand your backyard merely by mowing the lawn or building a shed and waiting ten years. The state of Nebraska will still “own” that land.