Protect Your Real Estate Investment From Adverse Possession

Added January 13, 2007 by Ilyce R. Glink and Samuel J. Tamkin

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Summary: What should you do when a neighbor encroaches on your land, especially if it is an investment property? Learn from a trial lawyer what he advises for cases of adverse possession. Understanding how to handle adverse possession will help you protect your real estate investment.

Comment: As a trial lawyer, I've probably had 50 adverse possession cases - on one side or the other.

I used to also teach real estate finance and every few years one of my students would enhance their property holdings by adversely possessing someone else's property. The adverse possession rules are worth knowing for any serious real estate investor.

This is also a big area for legal malpractice since so many lawyers tend to do the absolute wrong thing when consulted by a client complaining of a neighbor encroaching on their property.

As the name implies, one of the things a trespasser has to show in order to acquire title by means of adverse possession is that his occupancy was adverse to that of the titled owner.

All too often, when a landowner complains to his lawyer that someone is trespassing on his property, the lawyer writes a letter telling the trespasser to get off the property or suit will be filed. This is the exact wrong thing to do as it merely helps the trespasser in establishing the required "adversity."

What the lawyer (or landowner) should do is send the trespasser a letter thanking him for taking care of his property and advising that the license to use the property is henceforth revoked (or demand payment of rent if the trespasser wishes to continue staying where he is). If done properly, such a letter is quite helpful in destroying that required element of "adversity" thereby saving the landowner's property.

There are some exceptions to the adverse possession rules. You can not adversely possess against public lands or land owned by a government or against certain public utilities.

Also, I like your articles!

Jan. 13, 2007.

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