by Lucien C. Gwin III
Any Mississippian owning a house, land, and or even a yard at some point in time will likely have legal issues concerning his or her property. Homes, commercial buildings, lots, yards, and tracts of land are legally called “real property.” All other property is called “personal property.” I would estimate that at least twenty-five percent of my law practice deals with legal issues surrounding real property.
One issue that I have handled and seen litigated many times is the Doctrine of Adverse Possession. Simply stated, this is a doctrine where someone makes an open, obvious, continuous, and hostile claim to another’s real property. If this person does so for more than ten years, then this Doctrine of Adverse Possession “may” create ownership of the land in possession. Often, this doctrine is referred to as “squatter’s rights.”
Adverse Possession issues often arise in cases where neighbors don’t get surveys of their properties and simply rely on fences to stand as their property lines. Then, many years later when a survey is conducted, it is discovered that the fence line was never the actual property line.
I often tell my clients that own small and large tracts of land to know their boundary lines, know their corners, match the lines and corners up with all legal surveys, and keep both line and corners clearly marked with paint or metal tags.
If you have any acreage, you should check your boundary lines yearly and mark or paint those lines every three-to-five years. If you see your neighbor is encroaching on your property with either a fence, a land line, a deer stand, some timber-cutting, or any other form of trespass, you “must” act immediately and confront the interloper. If you do not, you may find that you have lost a part or portion of your land.
In the event that you are an absentee land owner, then it is even more important that you keep up with the yearly inspections of your property lines. If you see any encroachment and you do nothing, you could very well be waiving your rights.
In November 2017, the Mississippi Court of Appeals handed down a case styled Little vs Richey. In the case, Mr. Richey constructed a fence around his neighbor Little’s pasture in 1994. Record title to this pasture, however, was in Little’s name.
Mr. Richey constructed the fence around a pasture “thinking” he owned it, but a fence alone on property you don’t have title to will not give you ownership. But Richey did more than just put a fence in place. Richey built a barn on the property and, further, ran horses on the property.
The Court found that six factors had to be met by Richey, and those factors are the following: 1. Claim of ownership; 2. Actual or hostile possession; 3. Open, obvious, and visible ownership; 4. Continuous and interrupted claim for ten years or more; 5. Exclusive use of the property; and 6. Peaceful enjoyment of the property. Finally, all of these factors must be shown by “clear and convincing evidence.”
The Court made the following statement that best sums up adverse possession in laymen’s terms: “An adverse possessor must fly his flag upon the land and keep it flying, so the actual owner may see it, and if he will, know that an enemy has invaded his domain; and planted the standard of conquest.”
So, in order for a person to ultimately acquire title through adverse possession, there has to be aligning of the stars. First, the person has to publicly assert ownership. He must use the property in the face of the actual owner. It must be a continuous and uninterrupted use, meaning that the title owner knows or should know that the property is being used by another. The use must be peaceful which means that the actual owner never objects, never writes a letter, and/or never initiates any kind of litigation.
The use must be of a public nature (not just a one-time creation of a fence or of a temporary deer stand, for example). Finally, this open, obvious, continuous, hostile or actual, and visible use must go on for ten consecutive years or more, and must have an abundance of proof that all of the above factors have taken place. Richey was able to show all of the factors discussed above and thereby gained the title to his neighbor’s property through the Doctrine of Adverse Possession.
Know your property; know your boundary lines; make sure you do a yearly inspection of your lines; exert possession and control over your property at all times; and if you find any encroachment on your property by any outsider, you must act immediately to protect your property rights.
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