Retail, commercial, and industrial property owners need to be diligent about policing their property boundary lines to avoid losing valuable property rights to an encroaching neighbor. The doctrine of adverse possession opens the door for an encroaching neighbor to make a claim of ownership of a neighbor’s property under certain circumstances.

Basically, if the neighbor occupies all or part of the property for a minimum time period ranging from 5 years to 60 years, depending on the state where the property is located, they can claim adverse possession. What can a property owner do to protect valuable property rights from a land-grabbing neighbor? First, let’s explain the legal theory behind adverse possession.

What is Adverse Possession?

By way of background, adverse possession is a legal doctrine that allows someone (known as a claimant) to claim ownership of another person’s land if the claimant’s use of the land is open, notorious, exclusive, and continuous for a period of time designated by the legislature of the state where the property is located. For example, in New Jersey, the claimant’s use must be uninterrupted for 30 years, but the 30-year time period is expanded to 60 years for woodlands and uncultivated land.

The cause of action for adverse possession can be complicated and is beyond the scope of this article. However, all property owners need to understand this type of claim exists. Here’s a quick summary of what a property owner should know about adverse possession.

First, all property owners must exercise due diligence and adopt land management procedures. It is crucial to understand the exact boundary lines of your property, and the starting point is to review your property survey or deed to your property. Surveys can be hard to read depending on how old they are, so you may need to call the surveyor to ask questions or request an updated survey. As a fallback position, a tax map may help, but tax maps may contain errors.

Once you determine the boundary lines, perform a physical inspection to identify any encroachments or signs of trespass. For example:

• Is your neighbor’s dumpster on your property?
• Are trucks being parked on your property?
• Is a fence 20 feet over the boundary line?
• Is someone using part of your property as a driveway?

If you discover an encroachment or signs of a trespasser, it is crucial to determine the actor (the trespasser) so you know who to contact to demand they remove the encroachment or stop the trespass.

What to Do If You Locate an Encroachment or Trespasser?

Create an Agreement

First, you can enter into an agreement to make the encroachment or trespass consensual. By agreeing to your neighbor’s use, you remove a crucial element of adverse possession. By definition, when the use of real property is by consent, the use cannot be adverse or notorious.

Any agreement should be reduced to writing and signed by the parties, usually in the form of a lease, easement, or license agreement. Any lease, easement, or license agreement should also contain other customary and necessary terms. For example, the agreement should address maintenance obligations, restrictions on use, and when the agreement will terminate. Some agreements are limited to the present owners of the properties, others “run with the land” and benefit future owners. It is very important to have the agreement reviewed by a legal professional with experience in drafting and interpreting these types of agreements.

End the Encroachment or Trespassing

If you decide you do not want to enter into an agreement and would prefer the encroachment be removed or the trespasser to stop trespassing, you need to act quickly. Posting a “no trespassing” sign or sending a demand letter to remove the encroachment is a good start, but not enough in some states.

Erecting a fence or installing a gate is a very good response since it will interrupt the continuous nature of the trespass. If you need to remove vehicles, machinery, equipment, fences or structures from your property, you may need to seek the assistance of a court and obtain an order (1) declaring the rights of each party and (2) enjoining future trespasses. Many states, like New Jersey, do not favor self-help remedies, and taking action without court approval could be grounds for judicial intervention.

Calculating the adverse time period can be difficult, especially for a new property owner.

Many states allow a property owner to combine their time period of possession with that of a prior owner to establish the continuous possession requirement. This combination of the time periods is called “tacking.”

For example, if ABC Corporation has been using part of your property for 20 years and sells the land to XYZ Corporation which continues the use for an additional 10 years, XYZ Corporation can argue the adverse possession use has been continuous for 30 years. To prove or attack allegations of tacking, property owners often have to go back through their files, look for old photographs, or find witnesses who were around the area for a long time and can testify to the use or possession.