Arguments Over Fencelines? Law of Adverse Possession

Sometimes farms and ranches may have fencelines up for generations and then one day a land survey will tell a different story.  An article by Jay Girvin in the July 18, 2011 issue of Country Folks reminded me about this potential issue affecting the agriculture community.  In these cases, the law of adverse possession applies.  This is a common law property issue and the law differs from state to state so it is important that landowners seek counsel from an attorney licensed in that jurisdiction.

In New York, for example, “[i]n order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right; (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period.”  Hogan v. Kelly, 927 N.Y.S.2d 157, 158 (2nd Dept 2011).  In other words, one must satisfy all five elements by clear and convincing evidence in order to claim property via adverse possession.  The policy reason behind requiring all five elements to be satisfied is because acquiring property by adverse possession is strongly disfavored.

Briefly, occupation of land is considered “hostile” is when the other person uses the land consistent with ownership rights and is not done with permission by the landowner.  This hostile possession is “under a claim of right” when the person reasonably believes the land is his/hers.  Simply put, the “open and notorious” element is satisfied with the person uses the property in a way that would put the landowner on notice of the use (i.e., it cannot be secretive).  The “exclusive” element is satisfied when other persons are not simultaneously using the land.  Finally, this land occupancy must be “continuous for a required period.”  This “required period” especially changes from state-to-state.  In New York, the statutory period is 10 years.  It is important to note that you cannot adversely possess land against the government.

This photo was taken at the University of Illinois Orr Beef Research Center