If you’re a homeowner in the charming countryside of New Hampshire, you likely have a neighbor or two, even if they’re at a distance or through woodlands. You should be aware that these neighbors could gain possession of parts of your property under a legal doctrine known as adverse possession. Adverse possession essentially allows a trespasser onto a piece of land to gain ownership of that land if the true owner fails to object or take action within a certain period of time.
Your property is likely your most valuable asset in the Live Free or Die State. To make sure that all of your land remains yours, it makes sense to keep an eye on your property lines. Moreover, you yourself may one day want to assert a claim for adverse possession against another individual’s land. Either way, you’ll need to learn about New Hampshire’s adverse possession laws.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger but more often a neighbor—to gain legal title over someone else's land. The concept first developed in early Britain. It has been kept alive in order 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 him or her leave would seem unfair, or create hardship.
Adverse possession in New Hampshire is partially regulated by statute, but largely by the state courts. Of course, there are some hurdles to clear before someone can claim a piece of your New Hampshire land using this theory.
One major hurdle is that the burden of proof to establish a claim of adverse possession is on the trespasser. In other words, if you hold legal title to a piece of land, you are its presumed owner until and unless the adverse possessor can come up with enough compelling evidence and arguments to convince a judge to give him or her ownership over all or a portion of it.
Adverse possession should not be confused with having an easement to use another person's property—for example, when a neighbor has an easement to use your driveway to access his or her property. Easements involve shared rights with others in pieces of property, whereas adverse possession results in a shift in title, and the corresponding right to exclude others from the property. Read more about easements.
There is no single statute in New Hampshire that dictates the elements a trespasser must establish in order to prove adverse possession. Rather, the courts have set forth a variety of such factors over many decades of issuing decisions in individual cases.
As in most states, adverse possession in New Hampshire 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 (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive (in the possession of the trespasser alone); (iv) open and notorious (using the property as the real owner would, without hiding his or her occupancy); and (v) continuous for the statutory period (which is 20 years in New Hampshire, under N.H. Rev. Stat. Ann. § 508:2).
In addition to these factors, New Hampshire courts have repeated certain pieces of evidence that are likely to weigh in favor of granting a trespasser adverse possession. These include whether the trespasser purchased the land in good faith; whether the trespasser paid taxes on the property; and whether the trespasser holds a deed that indicates that he or she owns the land. As you can see, these mainly address situations where there was confusion over ownership rather than an outright attempt to take over another person's land. None of these factors instantly turn the case into a “slam dunk,” but they seem to weigh on the minds of New Hampshire judges.
To illustrate these concepts, let's take a hypothetical. Imagine that Amanda and Bob live next to one another in a suburb outside of Manchester. Without a wall between their properties, Amanda begins to put lawn furniture on what is technically Bob’s land. Eventually, Amanda builds an entire patio there. Bob never says anything. The years pass—20 years, in fact. Under New Hampshire’s adverse possession framework, Amanda will likely be successful in establishing an ownership claim to that portion of Bob’s property. Note that she won’t be able to take over all of Bob’s lawn—only the portion upon which she constructed the patio and which she actively used for those two decades. New Hampshire courts would be reluctant to suddenly eject Amanda and her patio after so much time has passed.
What should you do if you spot a trespasser or a neighbor encroaching on your New Hampshire land? Your first move, of course, is to speak with the person and ask that he or she remove all structures from, and refrain from entering onto, your property. If it’s an innocent mistake, the person is likely to comply. You can also call the local police, if the person remains on your land and refuses to move.
If the trespass continues, you may want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land. In an action to quiet title, you’re asking a New Hampshire state court judge to issue an order declaring that you, and not the trespasser, are the true owner (and title holder) of the land. This order is particularly helpful if you are seeking to sell your property, and need to reassure potential buyers.
Any property that is held by New Hampshire’s state and local government entities is typically immune from adverse possession actions. So, if you live next to an unused state park in Concord, you won’t be able to “annex” a larger yard by building a shed and waiting two decades. New Hampshire’s government always has first priority when it comes to ownership.