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Adverse Possession

Adverse Possession graphic

Adverse possession is frequently misunderstood, even by experts.   Example:  My daughter’s professor in Minnesota wrongly explained the concept to her.  Likewise, an attorney for the buyer of a house next to my father’s home also misrepresented what it is.

Many years ago when a previous buyer purchased the old home next to my father’s house, the seller concealed that his detached garage was encroaching 3 feet onto my father’s property.  The buyer’s attorney then tried to claim adverse possession, determined to try to take the 3 feet from my father.  What he misrepresented was that in order to make a claim, the use of the 3 feet had to be adverse, in other words, the owner of that land, my father, had to have known about the encroachment and had to have taken no action to enforce his right to his own land.  (And he had to have known about it for a lengthy period of time.)

Since this was the first time my father became aware of the issue and there had never been any notice given to the owner of the adjacent property and no enforcement had been attempted, the clock did not start ticking until my dad was first notified of the issue.  Because of this, the lawyer could not claim adverse possession, and in fact, the tables were now turned,  with my father being able to claim an illegal encroachment by the new neighbor’s old garage.

The final outcome of this dispute was resolved when the owner of the land (my dad) demanded that the person encroaching (the buyer of the adjacent home) remove the old garage from the property, which he did, tearing it down and building a new one entirely on his new own property, removing the encroachment.

Conclusion

The lesson is, never believe what someone tells you in regard to adverse possession; check it out yourself or have an expert make an inquiry as to the specifics.  Many real estate disputes hinge on the specific facts and circumstances of the case, not just the law in general.

Terrence R. Wall, Housing Developer

Former university lecturer and teacher of Real Estate Development

And creator of the first university level course in Sustainable Development

M.S. in Real Estate Appraisal and Investment Analysis from the

Graaskamp Real Estate Department, UW-Madison

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