Squatter's Rights and Adverse Possession

Q: We purchased a farm 13 years ago. We assumed the existing fence was the boundary line. The farm next to us was sold last year.
 

That's when we found that our neighbor has been using a portion of our land. The beginning of their driveway is on our land. The fence is a wood fence. A developer bought the land and is annexing it into the city.

The developer claims the land is his because it has been that way for over 30 years. My question is since the land was sold as a parcel to be surveyed, and it being annexed into the city, does he have squatter’s rights?

A: It may very well be that your neighbor owns land that you now found out was part of your property. For the last thirteen years you believed that the boundary line of your property was at the fence line. If you had done a proper survey of the land thirteen years ago, you would have known what the actual boundaries were for the property.

There is a concept in law that is called adverse possession. Adverse possession allows one party to become the owner of someone else’s property if they use the property in an open manner and contrary to the rightful owner’s rights.

If the neighbor pays real estate taxes, uses the land and keeps it as his own for a certain period of time – as many as 21 years in some states, less in others – that person is allowed to keep the land forever as his own.

But it’s unclear whether the circumstances you’ve outlined in your letter rise to the level of adverse possession.

Your neighbor must have used the land as his own. By your own admission, your neighbor did. You didn’t even know you owned it. If the new neighbor and his prior owners used the land in the same manner, they could claim they own the land. However, they’ll have to prove that they, and the prior owners, used the land without your permission, did not hide their use of the property, and that they used it uninterrupted for the last twenty years.

If, as they claim, it has been this way for thirty years, you might be out of luck.

But don’t give up hope. Sit down with an attorney who has experience in adverse possession cases and find out how to poke holes in your neighbor’s claim.

If there is a document of record that gave your neighbor permission to use the land, that could defeat their claim. If your prior owner gave them permission to use the land and he can verify that he gave them permission, then it has only been in the last thirteen years that they have had a claim of adverse possession and, perhaps, which is not the required minimum number of years in most states.

Finally, has did the neighbor pay property taxes on the parcel or have you been paying taxes on the land? These are the issues you need to cover with your real estate attorney. Good luck.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com