Vermont might be the second least populous state in the nation, but if you are a homeowner in the Green Mountain State, your home is undoubtedly your single most valuable asset. Given that, you have good reason to make yourself aware of the dangers of trespassers establishing legal claims to your property based on the legal doctrine of adverse possession.
Many types of disputes might arise against your Vermont neighbor, but adverse possession is a particularly dangerous one. Adverse possession, a legal concept that exists in all 50 states, essentially allows a trespasser onto a piece of land to gain ownership of that land if the true owner fails to object within a certain period of time. Although the specific requirements vary from one state to the next, homeowners need to be aware that their property could be in jeopardy. Sometimes, this trespasser is someone the homeowner has never met before. Other times, this trespasser could be a next-door neighbor.
To make sure that all of your Vermont land remains yours, it makes sense to keep an eye on your property lines and any encroachments. Moreover, you yourself may eventually want to assert a claim for adverse possession against another individual’s land. Either way, you’ll need to learn about Vermont’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 modern Europe.
Vermont courts continue to enforce this doctrine 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. In other words, if a trespasser spends enough time caring for a piece of property that the true owner has perhaps stopped paying attention to, and the true owner makes no objection, a court might award “ownership” to the trespasser.
Of course, there are hurdles to clear before someone can claim a piece of your Vermont 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 grant 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 house. 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 Vermont that dictates the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors over many decades of issuing decisions in individual cases.
As in most states, adverse possession in Vermont 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)
(vi) be accompanied by full payment of property taxes over those 15 years.
Imagine that Becky and Bill live next to one another in a suburb outside of Woodstock. Without a wall between their properties, Becky plants fruit trees and vegetables on what is technically Bill’s land. Eventually, Becky builds an entire gardening shed there. Bill never says anything. The years pass—15 years, in fact.
Under Vermont’s adverse possession framework, Becky will likely be successful in establishing an ownership claim to that portion of Bill’s property. Note that she won’t be able to take over all of Bill’s land—only the portion upon which she constructed the gardening shed and which she actively used for those 15 years. Vermont judges would be reluctant to eject Becky from the land she's using after so much time has passed.
What should you do if you spot a trespasser or a neighbor encroaching on your Vermont 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.
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 Vermont Superior 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 Vermont’s state and local government entities is typically immune from adverse possession actions. So, if you live next to an unused state park in Burlington, you won’t be able to “annex” a larger yard by building a structure there and waiting 15 years. Vermont’s government always has first priority when it comes to ownership.