GeoCarta Has Moved

Oct 28, 2005

Losing Your Land - Part III

In a previous post, I've discussed how a property owner can actually lose title to their land through adverse possession. A recent article in The Journal News highlights the misunderstanding regarding the issue.

Some of Jeffrey Gewert's backyard is fenced off by his neighbors, Patricia and Ronald Lee. In this fenced off area is a large willow tree, which he'd like to cut down. The Lees claim the land through the legal doctrine known as, "adverse possession." While specific requirements vary, the most common one is that the claimant possess the land in an open and hostile manner for a specific statuatory period. The News quotes Mr. Gewert as saying,"I think it's a crazy law. I think if more people were exposed to it, someone would change the legislation."

While Mr. Gewert's specific case is headed to the state Supreme Court, he is under a misconception. Adverse possession, which has its roots in English common law, allows a person to claim ownership of another's property if they meet certain requirements. However, it was never intended to allow someone to steal another's land. The principle came about in an agrarian society. People made their living from the land. The idea that someone would take so little care of his most valuable asset, his land, was foreign to them.

The principle also developed in a time when people placed less reliance on deeds. In the colonies, many towns had a special day set aside when the men of the town would walk the boundaries of the citizen's lands, re-establishing in everyone's minds, just exactly where they were located. The legal term, "metes and bounds" has its origins in this process where land was frequently described as being, "bounded" by the lands of another.

In actuality, the principle was to protect the neighbor that inadvertently encroached upon someone else's land. Let's say a landowner constructed a barn or fence upon his neighbor's property. This neighbor showed so little interest in the land that he did not notice for an extended period. It was felt that it was unfair to require the encroaching landowner to suffer the loss of his fence or barn, or possibly the loss in income from crops he'd been cultivating on the land. So the principle of adverse possession was established. While people don't go out and walk the "bounds" of farms today, the concept still applies to landowners. Anyone that owns property should make sure that they know the bounds of their property and protect them from encroachment because centuries of legal tradition presume that they do.