- The Washington Times - Friday, August 30, 2002

Homeownership is the American dream but did you know you can lose your land to squatters in this great country? A reader and homeowner from Sammamish, Wash., writes:

"There is a 1-year-old dispute going on over a fence that has been in its current location for 18 years that is encroaching a few feet into the common area. The past boards and architectural committee have had complete knowledge of this encroachment for the past 18 years and have never said anything.

"Last year, the board decided to request the fence, sprinklers, and play-toy [encroachments] be removed from the common land. The homeowner has claimed adverse possession at this point, but the homeowner is most interested in a settlement that will permit them to continue using the land and pass it on when they sell in exchange for relinquishing their rights to claim adverse possession."

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The note goes on to say that several other homeowners are encroaching on the common area, as well, but that the board is not asking them to remove their property.

Boy, talk about a lawyer's dream, these folks are going to spend a lot of money to figure this one out. Why? Because adverse possession is a thorny legal issue. According to www.FreeAdvice.com, a legal Web site prepared by top lawyers at more than 25 leading American law firms, adverse possession is a traditional common-law method for someone to obtain title to another person's land just by using it.

"The common law rules for adverse possession have been codified under both federal and state statutes. A typical statute allows a person to get title to land from the actual owner simply by using the land, out in the open for all to see," the site reports.

For example, if a neighbor builds a garage and starts using a portion of your land as a driveway, with intention of using the land as his own, and then pays the property taxes, he could take title to the land as long as you are aware of his use of the land, he has paid property tax on the land and the encroachment continues for a set period of time, which is determined by each state.

There are several elements needed for adverse possession to result in title, according to FreeAdvice.com:

• The length of time required could be as short as a few years or could run for 20 years or more. Some states have adopted a rule that requires the adverse possessor to pay taxes each year on the land. The length of possession required in the District and Virginia is 15 years, in Maryland, it's 20 years.

• The possession must be open for all to see.

• The possession must be exclusive to him or her (such as building a fence or other structure on the property, or the driveway in the above example.)

• The possession must be hostile to the actual owner of the land.

Now, "hostile" doesn't mean the "trespasser barricades himself on the land with a shotgun," according to lawyer Cora Jordan, writing in "Neighbor Law: Fences, Trees, Boundaries and Noise" (1994, Nolo Press). (This book excerpt is at www.lectlaw.com/files/lat06.htm.)

"Most courts follow one of two legal definitions of hostile. One is called the 'Maine rule' and requires that the person be aware that he is trespassing. For example, a man in Nebraska, a state which follows this rule, gained ownership of the neighboring eight acres by using them for years. He knew the property was not his, and a court characterized his action as hostile. The other popular definition, the 'Connecticut rule,' defines hostile simply as occupation of the land. The trespasser doesn't have to know that the land belongs to someone else. The Connecticut rule, kinder to the innocent trespasser, is followed by most states today."

Remember, an encroachment could result in title to your property being transferred to an adverse possessor. You might have to bring a lawsuit for trespass to prevent your neighbor from getting title to your land through adverse possession.

If you own land that others have access to, be advised to be an active owner and know what's happening on your land you could lose it.

M. Anthony Carr, director of communications for the Northern Virginia Association of Realtors, has written about real estate for more than 12 years. Reach him by e-mail ([email protected]erols.com).

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