When there is a boundary line dispute between neighboring properties, many people learn first of the doctrine of adverse possession, a legal principle derived from common law under which ownership of a parcel of property (or a portion thereof) can change without payment and against the will of the owner.
Chart providing details of New Mexico Adverse Possession Laws.
However, it is not always necessary to resolve a boundary dispute through a claim of adverse possession, and its requirement of a 'hostile' taking. Alternative relief may be available under the doctrine of acquiescence. The doctrine of acquiescence looks at the past conduct of neighboring property owners to determine if a boundary line can be legally implied from their past agreement, actions or inaction.
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Contents
Boundary Line Errors
The law of acquiescence is concerned with adjoining property owners, both of whom are mistaken about where the line between their property is. For example, adjoining property owners may treat a boundary line, often a fence, as the property line, even though the boundary line is in fact at a different location.
If the boundary line that the neighbors observe is not the actual, recorded property line, one property owner will be in possession of some portion of what is actually the other property owner's land. Even when a boundary line mistake results from mutual error, the property owner whose land is being possessed by another may normally file a cause of action against the other property owner to recover possession of the land.
When the doctrine of acquiescence applies, the property owner of record is no longer be able to enforce his title, and the other property owner will gain title.
How Acquiescence Occurs
Real estate laws vary significantly from state-to-state. The question of whether a claim of acquiescence is possible and the elements of an acquiescence action may be different depending upon where a real estate boundary dispute arises.
Under typical state law, acquiescence to a boundary line between properties may result in a change of ownership in three ways:
- Acquiescence for the Statutory Period: The neighboring landowners treat a particular boundary line as the dividing line between their properties for the statutory period, even though it differs from the boundary line defined by their deeds. The statutory period ('statute of limitations') for acquiescence can be quite long, and is often fifteen years or longer in duration.
- Dispute and Agreement: The neighboring landowners have an actual disagreement as to the location of the boundary line, and ultimately agree upon a boundary line which is not consistent with that set forth in their deeds.
- Acquiescence Arising from Intention to Deed to a Marked Boundary: A grantor intends to deed property to a physical boundary but mistakenly uses an incorrect legal description in the actual deed. The observance of the intended boundary line may create a legal basis to adjust the boundary line to its intended location.
Acquiescence for the statutory period depends upon the passage of time, and a court action can succeed only after the statute of limitations expires. For dispute and agreement or acquiescence arising from intention to deed to a marked boundary, the new boundary line may become enforceable through a court action without respect to how much time has passed.
Acquiescence vs. Adverse Possession
In adverse possession cases, the taking of land must be hostile to the title landowner's interest. Within that context, the term hostile means that a person possesses the land of another and intends to hold to a specific, recognizable boundary without regard for the true boundary line.
In acquiescence cases, neither neighbor intends to take property from the other, but there is a mutual mistake as to the location of the actual boundary line. A claim in an acquiescence case cannot be hostile' - if both neighbors believe they are observing the true boundary line and thus that they hold only their own land, they cannot simultaneously claim that they are holding the property of another without regard to the true boundary line.
Adverse possession property statutes -- sometimes known as 'squatters' rights' laws -- exist in every state. They detail the requirements for a trespasser eventually becoming the legal owner of property formerly owned by another.
One essential requirement is that the trespasser must live on the property or otherwise treat it as his own for a certain number of years. Kentucky Statute § 413.010 requires that the trespasser occupy the property for a minimum of 15 years. This period may be shortened to 7 years, per Kentucky Statute §413.60, if the trespasser has a certificate of title or a deed to the property. It doesn't matter if these documents conflict with the current owner's title -- in fact, they must. Otherwise there is no 'adversity' in the possession.
Beyond the residential minimum, there are four other essential requirements in each state, although some states have more.
The Adverse Possession Must Be Hostile
If a party comes onto a property owner's land with permission, he isn't occupying it as a right. All adverse possession laws, including Kentucky's, insist that the trespasser must occupy the property as a right regardless of a conflicting claim. The term 'hostile' in these statutes doesn't mean 'by force,' but rather in disagreement with the claimed rights of others. Some states allow an 'honest mistake' as effectively hostile and some do not. Kentucky does. One Kentucky property owner could build a fence on his neighbor's property because of an inaccurate survey and through that mistake eventually become the owner of the property extending to the fence line.
The Adverse Possession Must Be Actual
A written claim of adverse possession has no legal weight. The trespasser must physically inhabit the property.
The Adverse Possession Must be Open and Notorious
'Notorious' as it is used in the statute means something like 'known to all,' and reinforces the requirement of openness. For example, if someone had a large heavily wooded tract of land, a trespasser couldn't claim adverse possession by sneaking deep into the woods and occupying a partially hidden cave. The trespasser must act openly, as an owner would The possession must be apparent to anyone passing by the property.
Possession Must Be Exclusive and Continuous
These two adjectives occur in virtually every state's adverse possession language, as they do in Kentucky's. What numerous court decisions have determined is that in the context of adverse possession:
• 'Exclusive' means that the trespasser must not share the property with the purported owner. A trespasser who builds his driveway on a neighbor's land has taken exclusive possession. A trespasser who sometimes uses his neighbor's driveway -- when he washes his car, for instance -- has not.
• 'Continuous' does not mean 'never leaves the property.' A trespasser who builds a cabin on another's property and lives in it may leave the cabin to buy supplies and conduct businesswithout jeopardizing his claim. A trespasser who builds a cabin he uses only occasionally probably has no claim. On the other hand, if he uses the cabin every weekend or during hunting season, the matter is ripe for dispute.