One of our attorneys’ neighbors, who purchased land from the lawyer to build a home, recently put up a fence in the backyard between the properties. (Just an aside: the fence was not built because the attorney’s family makes a bad neighbor, but was put up because the neighbor had a baby last year and wanted to keep the child safe while playing in the back yard.) The spouse of the lawyer insists that the fence encroaches the lawyer’s property by about one foot and that the lawyer needs to tell the neighbor (who, by the way has an in-ground swimming pool, which the neighbor lets the lawyer’s family use) that the neighbor needs to move the fence. The spouse, like many individuals, has heard of the concept of “squatter’s rights,” or adverse possession, and this article attempts to explain the concept in lay terms.

Under Missouri law, each case of adverse possession must be decided in light of its own unique circumstances. Those specific facts of possession and ownership exhibited by individuals that would support a finding of title by adverse possession in a populated and highly developed area are not the same as those which would support such a finding where the property is sparsely populated, farmland or waste land. The essential element of adverse possession is that the individual claiming title to the real property by adverse possession must occupy the particular piece of property intending to possess the property as their own. Such adversity is shown by satisfying the five elements of adverse possession.

Actual Possession:

The first element is actual possession. If an individual is occupying land without an alleged ownership interest, the individual must show physical possession of the entire area that is being claimed. Physical possession is shown by clearing, cultivating, pasturing, erecting fences or other improvements, and paying taxes on the land. Doing all or any combination of these acts serves as evidence of actual possession.

Possession is Hostile or Under Claim of Right:

The second element to establish adverse possession is that the possession be hostile or under a claim of right. Thus, the individual must occupy the land with the intent to possess it as his own and not in subservience to a recognized superior claim of another.

Possession Must Be Open and Notorious:

The third element is that the possession must be open and notorious. That is, that the possession was conspicuous, widely recognized and commonly known. Actual knowledge need not be proven; however, it must be shown that the occupancy was so obvious and well-recognized that the actual owner will be presumed to have had such knowledge.

Exclusivity of Possession:

The fourth element is exclusivity of possession, which means only that the individuals are occupying the land for their own use and not for another.

Continuous Occupancy for Period of 10 Years:

The final element is that the occupancy be continuous for a period of 10 years. In order to reach this continuous 10-year period, tacking of possession by previous owners is allowed. For example, using our lawyer’s situation, if the neighbors sell their house in five years, those five years can be used by subsequent owners of the home to reach the 10-year statutory period.

Of the above elements, the most difficult usually to prove is actual possession. In order to gain title by adverse possession, an individual must identify the land claimed in precise language so that the boundaries may be determined and recognized by the courts. Moreover, just putting up a fence is not enough. An individual occupying claimed land must do more than erect a fence. A review of the cases show that the individual must take care of the land and use the land as any true owner would do to the exclusion of all others.

The difficulty, and fact specificity, of adverse possession cases is shown below by describing two separate cases concerning adverse possession, with opposite outcomes. The first case dealt with defendants whose family had owned 227 acres of land in Taney County, Missouri, for over 100 years. Plaintiff brought a quiet title action to quiet title two-thirds of an acre of property adjoining plaintiff’s property by adverse possession. Plaintiff’s evidence was that he replaced a barbed wire fence that had been erected in 1970; that plaintiff and his predecessors in title, had mowed and maintained all of the disputed property; that plaintiff had constructed a boat dock that was attached to the disputed property, ran electricity to the boat dock over the disputed property, and had improved a sidewalk that had been installed from plaintiff’s home to the lake, which ran over part of the disputed property. Finally, plaintiff testified that no one but his family and invited guests had used the disputed property. To contradict plaintiff’s evidence, defendants stated that defendants used the disputed property to walk to the lake whenever defendants visited the property; that defendants had given permission to their invited guests to use the disputed property, and that defendants paid the property taxes on the disputed property.

The second case dealt with the disputed ownership of a strip of land that ran along the common boundary of two abutting tracts owned by plaintiff and defendant in Ray County, Missouri. At the time defendant acquired his property, there was an old wire fence running along what defendant believed to be the boundary of his property that had been in place since the 1960s. In 2004, plaintiff and defendant hired a land surveyor to conduct a survey of the land contained in the respective deeds to their property. The survey revealed that the true boundary of the properties was not the wire fence, but that there was approximately 1.5 acres of defendant’s land on the other side of the wire fence, the disputed land. Defendant began clearing brush and cutting trees from the disputed land and attempted to install a new fence near the true boundary line. Plaintiff filed a quiet title action, alleging that plaintiff acquired title to the disputed land by adverse possession. Plaintiff’s evidence was that she repaired the wire fence; that she used the disputed land from time to time to corral cattle; that she allowed cattle to graze on the disputed land; occasionally walked on the disputed land; that she went mushroom hunting on the disputed land; and that she allowed invited guests to mushroom hunt and deer hunt on the disputed land.

The court in the first case found for the plaintiff and quieted title of the disputed land to plaintiff. In doing so, the court held that there was sufficient evidence to establish adverse possession. The court in the second case denied plaintiff’s claim for quiet title, and defendant retained ownership of the land. In doing so, the court stated that a plaintiff claiming land by adverse possession must do more than maintain a fence to show actual possession. Plaintiff, in addition to maintaining the fence, needed to show that she mowed, removed hay, cleared brush or tore down timber from the disputed property.

So what should our lawyer do about the neighbors’ fence? The lawyer’s family probably will not go through the gate in the fence and maintain that portion of their yard that is on the other side of the fence. Also, the lawyer is sure the neighbors will continue to cut all of the grass inside the fence, and quite possibly plant flowers and shrubs along the interior of the fence as they love to work in the yard. The lawyer is not sure if the neighbor knew that the fence was put in the lawyer’s yard. However, that does not matter as long as the neighbor intended to place the fence in its position with the intent of claiming the property within the fence. The fence is open and obvious to anyone who comes into the back yards, and it certainly excludes anyone else from using the property. However, the fence has only been up for three months, not 10 years, so the lawyer can wait until at least the swimming season is over for this and the next eight years and then decide what to do about the neighbors’ fence.

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