BOUNDARY DISPUTES

In my practice of law, I have run across a significant number of cases involving boundary disputes. Those cases vary from “can I trim branches that overhang my lot line?” to “my neighbor found out my driveway is partially on his property, so he put a up a fence down the middle of it.” (True story.) I have also seen disputes over parking lots that were once under the same ownership. Sometimes my advice is a simple “yes or no.” Sometimes the matters end up in protracted and expensive litigation.

In this article I will address, in basic terms, one of the legal theories that may come into play with boundary disputes. Adverse possession is something that most people have heard of. This theory requires continuous and adverse possession of property, uninterrupted for a period of at least twenty years. The possession must be open, notorious, hostile and exclusive of the rights of others. The property must be either protected by a substantial enclosure or “usually cultivated or improved.” These are all legalisms with meanings that have been defined by courts over many years. “Hostile,” for example, does not necessarily mean unfriendly.

The driveway situation is a good example to explain this theory. Imagine a driveway just along the neighbors property. For whatever reason, the neighbor gets a survey that reveals your driveway being three feet onto his property. The driveway has been there for years. It has always been used as a driveway and you have dutifully cleaned, repaired, sealed and, in the winter, plowed it. You have owned the property for fifteen years and the previous owner also for fifteen years. Adverse possession?

The twenty years is satisfied because you can tack on the prior ownership. The property is usually cultivated or improved, that is, it is put to a use that an owner would typically employ. The use is open, notorious and hostile, being obviously contrary to the neighbor’s ownership rights. Finally, your use is exclusive to the rights of others; you are using it as your driveway, just as if you owned it.

The answer is that this is probably a case where adverse possession could be established. Unfortunately, it is almost never this cut and dried. One could even poke holes in this example. This area of law almost always requires the assistance of an attorney, and one who is familiar with the issues.

The parking lot example presents a couple more legal theories that will not fit into my allotted article size. Overhanging branches? Trim carefully and do not kill the tree.