Adverse Possession with Farms

When does “the back forty” become “the back forty-two”?  The subject of acquiring title to property by adverse possession always seems to generate interest and discussion, but when the facts and the law are peeled back far enough, adverse possession is rare.  Adverse possession is the acquisition of title (not use) to property by possession.  From a practical standpoints, courts make it difficult to obtain property through adverse possession.  A plaintiff must prove each of the elements.

The party claiming title by adverse possession must have clear and convincing evidence that establishes hostile, actual, open, exclusive, and continuous possession, under claim of right or color of title, for at least 10 years  (the statute of limitations in New York).  Each of these required elements for adverse possession presents a separate hurdle:

Hostile Possession: Hostility refers to words or acts that show a person claims a right to use the land.  Where no formal declarations of intent are made, hostility can be demonstrated by acts characteristic of an owner, rather than those of a mere user, such as maintaining and improving land.  Interestingly, payment of taxes is not essential to the acquisition of title by adverse possession.  Permissive use of land is not considered to be hostile or under a claim of right even if it continues over a long period of time.  So if your neighbor knows you cut through his yard and waves to you when you do it, then the hostility is defeated.

Actual Possession: For there to be actual possession, the claimant need not live upon land, enclose it with fences, or stand guard.  It is enough if the claimant treats the property like his/her own ground.  That said, the conduct required to claim a building is different from the conduct required to claim a wooded lot.  A claim of ownership may be shown by receiving the rents, issues, and profits of the property, by improving it, or by paying for insurance on the property.

Open/Notorious Possession:  This requires proof or showing that the true owner should be aware somebody else is claiming the ground.  In other words, it is not done in secret.  Erecting signs and buildings or cropping the land are all things that should indicate to the true owner that someone is using the ground.

Exclusive Possession:  The possession of the property must be exclusive.  A mixed, shared or scrambled possession is not exclusive and will not ripen into title. Again, when you cut across the neighbor’s yard and he uses the same route, you are not establishing possession.

Continuous Possession: This element of adverse possession requires a type of claim and a holding period of 10 years. The two types of claims are Claim of Right or Color of Title, discussed below.

For Ten (10) Years.  This is a simple math problem (usually). Consider a scenario in which you have maintained an abandoned railroad right-of-way as your own for years and otherwise meet all the elements for adverse possession.  Under Claim of Right, you thought the land was yours when the tracks were pulled up; or, under Color of Title, the strip was conveyed to you, when really belongs to an out-of-state investor. Five days before the end of the 10 years, the investor’s summer intern comes out and says, “Thanks for taking care of that. We are putting in a new ethanol spur line here, so you can take your last crop off.” The ten-year period is most likely not met and you are out of a strip of land.

This is an excerpt from my first book that I co-authored with Pat Dillon, an Iowa agriculture lawyer titled “Field Manual: Legal Guide for New York Farmers and Food Entrepreneurs” available on CreateSpace, Amazon, Kindle and iBooks. You can find out more about this book here.