Adverse Possesion & Boundary Dispute

[George Kamerzan]

I purchased a house with .33 acres in WA state, after carefully measuring it seems I only have .27. Apparently the neighbor to the back and side of me has been using my land(he built a little road for his truck and built a shed. My property should continue into his yard for about 20 feet and run about 115 feet. What should I do, I owned the property for a year now, I believe I have title insurance. Thanks!

[Miss Kyra]

This is my first post.  It got long, but this isn't a subject that begs simple answers.  

Be very careful here. Do NOT fire off a knee-jerk letter claiming the property as yours, polite or not. Resist the urge!!  Do your research first then make a plan.  Many lawyers get their clients into trouble by sending a strongly worded letter that eventually causes more problems (& loss) for the original property owner, but nets lots of billible hours for the lawyer. 

I have been on both sides of easement disputes. I broke the bonifide prescriptive easements against my property.  It took lots of time (years), patience, and an appropriate strategy, but I avoided court and broke their potential claims.  

TIME: How long has the neighbor been using this property? Talk to the prior owner, look at google earth. document everything, you may need it if you go to court. If he hasn't met the time requirements then your job will be much easier.

Is he paying TAX on the land? Check with the county. After a year you may already know the answer. If he's not paying the tax then you have an easement issue rather than an adverse possession issue.

Is this EXCLUSIVE use? are you prevented from using this part of your property because of a fence or barrier?  On the West Coast, exclusivity for easements isn't always required. The case law on exclusivity is fuzzy, varies from state to state, court to court, and is often contradictory. Some courts require exclusive, some don't, It's a complicated issue.  Gather the information and hope you don't have to use it. Take pictures.

Judge the character, intent, knowledge, and litigiousness of your neighbor.  This will determine how to proceed. Even when wrong, people dig their heels in when it comes to land. 

Decide your goal. Are you mad about money/taxes, loss of land? Do you really care the neighbor uses this? Do you intend to fence in everything including the disputed part of the land? Impatience here will not help you.

The Adverse Possession vs Easement process is similar with the exception of paying taxes (& sometimes exclusivity). At a minimum it sounds like your neighbor may have an unperfected prescriptive easement, depending on how much time has elapsed. The difference between easement & adverse possession lies in who owns the land and who pays/paid the taxes. If he's paid taxes, then the neighbor is outright knowingly trying to claim the land, use caution.  If he's just using it and you still own it and pay taxes on it, then it may be a prescriptive easement and he 'enjoys' the use. 

This issue is likely not covered under title insurance, in my experience they have an exceptions clause that doesn't cover unperfected prescriptive easements -- those are your duty to uncover by due diligence, including observation. They would typically cover if the adverse user tried to file a quiet title to claim easement/adverse possession BEFORE you closed escrow and they hadn't found that record.  

Easements (and Adverse Possession) both still need to be 'perfected', meaning they must meet ALL the required elements AND file a Quiet Title action. If the neighbor has fulfilled all the requirements (time, hostile, actual possession, open & notorious, exclusive and continuous, etc) but hasn't filed the claim then his easement is only prescriptive, meaning he could file that Quiet Title action and win or you can break his prescriptive easement.  Best case scenario is he put the road in 3 years ago and hasn't met the time element and he's just trespassing. One breaks a prescriptive easement in the same way it was created. With time, open actions, etc.

For sake of argument, lets assume he's met the Time requirement for your state and didn't pay property tax. He's fulfilled Actual Possession: he's physically present on the land, treating it as his own. It's Open and Notorious Possession: he's not secretly trespassing, you can see his use based on the driveway and building, and his driving on it.  Exclusive and Continuous Possession- (exclusive is fuzzy, mostly for Adverse possession anyway - as a land owner never let your case rely on that) and he likely has continuous/uninterrupted use for an unbroken period of time - since you can't prove otherwise. That leaves Hostility: Once again hostility gets redefined by modern courts in regards to his intent.  You can't control his intentions, or what he did/didn't know, if its an honest mistake or not, or if the prior owner knew/didn't know so lets not focus on that, it's a waste of time and energy. What is legally consistent is if you the land owner allowed the use (permissive) or if you didn't want the use to happen (it was hostile to your wishes/ownership rights of the land). Courts often assume that the use was hostile on the face of it (not based on your 'feelings'). Hostility has nothing to do with civility or niceness, only if it's adverse to your rights of land use in regards to ownership, enjoyment, & control.  In this example ALL the elements have been met for prescriptive easement. Congratulations! on buying land you own and pay for, maybe even use, but have to share.

So, based on the above assumptions, continuous possession and hostility are the two elements you have to work with.  Continuous possession is broken by gating the road at least 1 day per year in an obvious way (not secretively at 2-4am or hazardously setting traps).  Hostility is broken by granting permission, a written letter and signage.  If the neighbor has fulfilled the time requirement, then you must fulfill that same time requirement for your state to break his prescription. This is the lowest cost, least stressful way to deal with this.  If you don't want him to use the land, solidly break the easement FIRST, then in a few years, reclaim the land or offer to sell it to him and do a lot line adjustment. 

Also, under no circumstances cause any dangerous impediment to his use of that driveway. If you end up in court one day things go bad quick if the judge believes you didn't 'act in good faith.'  ALWAYS act in good faith, while protecting your property rights.

Now for a few examples from California, The elements are the same, but there is a 5 year period to perfect the easement.

1. In an older mountain mining town, the downtown Safeway has an unusually large parking lot that is often used as a traffic cut across to go around a busier part of town. It's practically a public right-of-way. Once a year, on Christmas day, when it's least likely to affect the public, one entrance is closed with a cable across it.  Annually they break the 'continuous use' element.

2. In big cities like San Francisco, often the tall buildings own up to the roadway, including the sidewalk that the general public uses daily. Small permission notice signs are mounted either on the side of the building or embedded in the sidewalk near their property line.  This serves to break the 'hostile use' element of the public access and prevent easement claims.

3. I used a combination of moving their stuff off my property, permission, signage, fencing, and gating 1-2x per year.  It's a long story, but I eventually broke all their easement claims.

4. A neighbor claimed the easement thru her property was only for certain properties enjoyment and excluded others (us) citing her Real Estate Agent.  The recorded easement documents are unclear who benefits, only that the easement exists. My husbands family maintained and used the road since the 1960s (open, notorious, obvious, continuous use, actual possession (physically used it & treated it like we owned it) and controlled the gate for the last 20 years, ejected trespassers & breaking general public easement, etc.  Parts of the road are from a mid-1800s stagecoach route.  Based on her rants it became clear she didn't understand easement law (which by now I did), didn't know where her property lines were, and had a temper.  She put up game cameras to 'catch us' on her property and clearly and violently told us to stay off.  I documented everything, time/day/statements/use/photos etc. so if this issue comes up 10 years from now we have that info to prove our use as 'hostile'.  At least once a year I try to get photos of our use, any maintenance done, when we close the 2nd gate (rarely) etc.  At the time, we also made an extra effort to use the easement more, walking, smiling and waving at the camera so she'd have plenty of evidence of our use.  She finally had her property surveyed and we never heard from her again, likely her surveyor or attorney set her straight.  Lesson learned: Don't trust the Real Estate Agent, this easement was obvious for anyone who set eyes on it that it was in use on a regular basis, being maintained, and provided access to more than what her agent said, despite what the plat map shows.  One could follow the road thru her property onto several others.  It was her duty to inspect and know what she was buying and centuries old case law backs that up.

Every case is unique.  Feel out what will work best for your situation.  But if you fire off an 'I own this property and don't give you permission' letter then you just proved their 'hostility' element.  If the neighbor is only trespassing for a short period of time it may the necessary action, but if they've been trespassing for many years that letter may help them trespass in perpetuity by perfecting an easement or worse.