Chapter 10 Using Another's Land: Trespass and Easements

• Library: Neighbor Law (Nolo) (2023 Ed.)

CHAPTER 10 Using Another's Land: Trespass and Easements

Trespassers Who Become Owners

Requirements for Obtaining Land by Adverse Possession

What Can an Owner Do to Ward Off an Adverse Possession Claim?

Easements

Utility Easements

Other Written Easements

Easements by Necessity

Easements Acquired by Use of Property

Man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cant be displaced without cutting at his life.—Justice Oliver Wendell Holmes

People have the right to keep unwanted intruders off their property. They do this all the time, sometimes with fences or with signs, sometimes just by asking trespassers to please stay away. In cases of serious, repeated annoyance or threatened harm, landowners can call the police, who will usually warn the person to stay away and, if necessary, make an arrest. Trespass is a minor criminal offense, and someone convicted of criminal trespass can be fined and jailed.

Another kind of trespass is more permanent: using another's property as an owner would use it. If someone drives across a neighbor's land every day, it is a trespass unless the owner has granted permission or the driver has a legal right, called an easement, to use that part of the neighbor's property. A neighbor who puts up a fence two feet over the boundary line is trespassing, as is the one whose garage has been on the neighbor's property for several years.

These trespassers can also be asked to leave or warned away. But there's a chance that any of them might have, or could eventually gain, a legal claim to the portion of the property they're trespassing on.

Trespassers Who Become Owners

Many landowners are surprised to learn that under certain circumstances, a trespasser can come onto land, occupy it, and gain legal ownership of it. The trespasser might acquire a few feet of property or whole acres in this way. If someone is using your property, even a small strip on the edge, you should be alert to the legal risk.

The legal doctrine that allows trespassers to become owners is called "adverse possession." Another legal doctrine—called "prescriptive easement"—gives a trespasser the legal right to use part of someone's land for a particular purpose but does not make the trespasser the legal owner of that piece of land. (See "Easements," below.)

Although the term "adverse possession" sounds nasty (and the results certainly can be for the landowner), the trespasser is not necessarily an intentional evildoer—far from it. The trespasser might simply have made a mistake—relying on a faulty property description in a deed, for example. Questions about ownership often wind up in court after absent owners of rural property discovers that someone is living on their land or a title insurance company refuses to issue insurance when a piece of urban property is sold because the neighbor's garage is found to be standing squarely on the property. If the people involved can't work something out, the property owner may sue the trespasser, or the trespasser may bring a lawsuit to "quiet title"—a request for the court to settle who owns what. (For information on how next-door neighbors can work out boundary agreements themselves, see Chapter 9.)

Requirements for Obtaining Land by Adverse Possession

Trespassers obtain legal ownership of property if their occupation of the property is:

• hostile
• actual
• open and notorious
• exclusive, and
• continuous for a period of years set by state statute.

(We explain each of these terms below.) Some states also require the trespasser to have paid the local property taxes on the land. The time required, which varies from state to state, is usually 20 years. It can be as short as five years when the trespasser pays the property taxes. (See Chapter 18 for more information on how to research your state's laws on adverse possession.)

Hostile Claim

The word "hostile" does not mean that the trespassers barricade themselves on the land with a shotgun. Most courts follow one of two legal definitions of hostile.

Awareness of trespassing. The minority definition is called the "Maine rule" and requires that the person be aware that the use of the property is trespassing.¹ For example, in Arkansas, a state that follows this rule, two men gained ownership of a portion of a neighboring drainage ditch that they paved and used for years. They knew the ditch was not theirs, so their use was "hostile" under Arkansas law.² Ironically, the rule is less strictly followed in Maine now and is often criticized by legal experts for rewarding bad actors.

Simple occupation. The more popular definition, the "Connecticut rule," defines "hostile" simply as occupation of the land.³ The trespasser doesn't have to know that the land belongs to someone else.

EXAMPLE: Jesse isn't sure where his property line is but thinks an old fence marks the boundary. When he builds his new garage, he builds up to the fence line, which is actually 10 feet over on his neighbor's property. Under the Connecticut rule, Jesse's intention doesn't matter, and his occupation is hostile even though he thinks he is on his own land.

Good-faith mistake. A few states follow a third rule, which is directly opposite of the old Maine rule of requiring intentional trespass. The trespasser must be completely innocent and must have made a good-faith mistake, such as relying on an invalid or incorrect deed. For example, in Iowa, which follows this good-faith rule, a woman attempted to claim a strip of her neighbor's land by adverse possession. The court denied her claim because she knew it was not her property, even though she had treated the property as her own for 30 years.⁴

Actual Possession

The trespasser must actually be in possession of the property and treat it as if an owner. This means there must be a physical presence on the land. It's not enough for someone just to make a claim, orally or in writing, of ownership.

Open and Notorious Possession

The words "open and notorious" simply mean that it must be obvious to anyone, including an owner who investigates, that a trespasser is on the land. Actual (physical) possession is usually open and notorious. Someone out in the field harvesting crops is obvious, as is a person pruning the rose garden that they planted on a strip of the neighbor's backyard. Similarly, a neighbor who puts a fence up slightly on the next-door property is obvious. So is the one who just poured a concrete driveway two feet over the boundary line.

The point of this requirement is that the original owner knows someone is occupying the land and thus has a chance to do something about it. According to the theory of adverse possession, an owner who allows someone to trespass for years without giving permission, complaining, or taking action loses rights to the land.

Exclusive and Continuous Possession

The trespasser must possess the land exclusively and without interruption for the time period set forth in the state's statute.

A trespasser must occupy the land continuously for the full time period. A trespasser can't give up the use of the property and then return to it and count as possession the time that it was abandoned—that wouldn't be continuous possession for the whole time.

"Exclusive"...