"Adverse possession" is a legal term
that many of you may have heard. Most people
probably don't know what it means, however.
Even most lawyers probably don't really understand
how it works. Simply put, adverse possession
is a way that I can claim ownership of my neighbor's
land against my neighbor's wishes.
I won't try to go into how the legal principle
of adverse possession came to be. It is very
old. In order to understand how it works, however,
you do need to know something about the logic
behind it. Otherwise it will seem like nothing
more than a way to steal your neighbor's land.
I think the real idea behind it is that if someone
has been using a parcel of land for a long period
of time, another person shouldn't be able to
claim it really belongs to him.
The principle is probably most easily understood
in the context of owners of adjoining parcels
of land. Let's say you own the parcel of land
next to mine. I believe the boundary between
our respective parcels is in one place. You
believe it is in a different place. I build
a fence where I believe the boundary to be,
which results in some land that is really yours
being on my side of the fence. You don't do
anything about the fence being in the wrong
place, and I use the land on my side of the
fence, for ten years after I build it. At the
end of that ten years, the land on my side of
the fence becomes mine by adverse possession.
Nothing happens automatically at the end of
the ten year period to document my ownership
of the land on my side of the fence. If I want
to have such a document, I have to file a lawsuit
against you and prove the facts necessary to
my claim of adverse possession. If on the other
hand you file a lawsuit against me to get the
fence moved to the true boundary, I can prove
the facts necessary for adverse possession and
thereby establish ownership of the land on my
side of the fence. Pretty neat, huh?
One big obstacle to gaining adverse possession
is permission from the true owner. If you know
that I put the fence on your side of the boundary
and I am using your land, you can prevent me
from claiming adverse possession by simply sending
me a letter before ten years have passed that
says you know I am using your land that is on
my side of the fence, that I have your permission
to use it, but that you reserve the right to
revoke your permission at any time. If I am
using the land only with your permission, I
can never make a valid claim of adverse possession.
I have of course left out a lot of messy details
that make the principle hard to apply, and which
lead to a lot of misunderstanding of the principle
among lawyers and others. It can apply not only
to ownership of a parcel of land, but also to
the right to use a parcel of land for access
to other land. The legal lingo for that application
of the principle is "prescriptive easement."
The application of the principle is always more
complicated than it sounds, and frequently depends
on proof of facts that may be disputed or events
that happened a long time ago. It is not the
preferred way to settle whether your fence is
really on the boundary between your land and
your neighbor's.
