The following scenario happens more than you would expect. You find a home after years of looking and it is perfect. You purchase the home and start a family. You mow the lawn, plant trees, make a garden, and work hard to make sure that every inch of your property looks beautiful. Your property is separated from your neighbor’s lot by an old fence that was put up by the previous owners. You have never had the property surveyed and your neighbor has not either. You believe the fence was accurately erected along the boundary line and have no reason to question otherwise.
Many years later, your neighbor plans to sell her property to an eager purchaser. The purchaser decides to have a survey done of the property and is surprised to learn that the fence separating your properties was not erected along the boundary line, as you both had believed. In fact, the fence was actually erroneously erected twenty-five feet inward from the boundary line onto your neighbor’s property, which means that a twenty-five foot strip of land which you had thought was yours is actually part of your neighbor’s lot. You planted trees and a garden in this strip for years and spent many, many hours maintaining this area. You even constructed a play scape for your kids in this twenty-five foot strip area and watched your kids swing for years. However, after your neighbor provides you with a copy of the survey, you realize that the garden, trees, and play scape are all on your neighbor’s property, and she is now demanding that you remove everything and move the fence to accurately reflect the boundary line. This would result in you losing a 25 foot strip of your property! You sympathize with your neighbor, but you and your family love that strip of land and it has become an integral part of your Property over the years. What are your options? What can you do?
You may be able legally acquire that strip of land under a theory of a legal doctrine called Adverse Possession. Connecticut law recognizes Adverse Possession as a mechanism to acquire legal title to Property. If you can establish title of land by Adverse Possession, you will own the land the same as if you had acquired the land by deed from the owner. However, in order to establish title by adverse possession, you must establish the necessary elements by submitting evidence to the Court.
The following are the elements that you must satisfy to establish a claim that you have acquired land through adverse possession. The elements are established by statute and reiterated by case law in cases, including the Supreme Court case, Roche v. Fairfield, 186 Conn. 490, 498 (1982). First, the owner of the land must be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right. This essentially means that the possession and use of the land must be without permission and you must treat the land as your own. The use must also be exclusive, and shared dominion by you and your neighbor will likely defeat any claim that you acquired the land by adverse possession.
The other elements that you must establish to claim title to land through the doctrine of adverse possession are that your use must be uninterrupted, open, visible, and exclusive, for a period of fifteen years. While each element has been articulated in more detail by the Courts, this generally means that your use of the land must be commonly known and must also be continual. The Courts will examine the specific facts of the case to determine whether your use was commonly known and continual, and look at things like maintenance, frequency of use, and other factors. In a case like the example above, a strong claim may be made that the use was commonly known and continual if the claimant maintained and used the property frequently.
Therefore, if you find yourself in a situation like the example discussed above, you need not forfeit your strip of land to your neighbor notwithstanding an erroneously placed fence if you can prove the elements of adverse possession. In order to make such a claim, you must file an action the Court called an Action to Quiet Title, which is a cause of action used to settle title disputes. If you can prove your case, you will receive an order from the court allowing you to acquire title to the strip of land and the integrity of your lot will be preserved.
I have experience helping clients file and defend claims of adverse of possession. I can help you if you find yourself in a situation where your neighbor is making a claim to land that you believe is yours. Adverse Possession is fact specific and often depends on various sources of evidence, old and new, which is why it is important to retain counsel sooner rather than later. I would be happy to sit down with you to discuss your adverse possession claim.