And Like That, It's Gone -- How You Can Lose Some Of Your Property Without Even Realizing It

Have you thought about your property line lately? Does a neighbor have a fence, retaining wall, or landscaping along the property line? Are you sure that such things aren’t encroaching onto your property? These are legitimate things to consider because, under certain circumstances, the property lines can be redrawn without your agreement. Let’s discuss how.

There are two primary legal theories that can allow a neighboring landowner to take part of your land. One is known as “boundary by acquiescence.” The other’s called “adverse possession.” Both legal theories can cost you some or all of your land, without your consent, if you allow an adjoining landowner to encroach on your property for a sufficient period of time. If either legal theory’s proved in court, a judge has the power to judicially rewrite the property boundaries regardless of what existing deeds, plats, and surveys might provide.

Boundary by acquiescence claims are established by Iowa Code Chapter 650. Under that statute, if a certain property boundary has been recognized and acquiesced in for ten years, that boundary will be considered established as the new property boundary, regardless of what the original property line was supposed to be. These situations often arise when landowners erect things along what they believe to be the property line without having a survey done to determine the boundary’s location.

The boundary can be marked by things such as a fence, a wall, a tree line, landscaping, posts at each end of the property line, or pretty much anything that makes it clear where the neighboring landowner believes the property line to be, even if much of the line must be imagined as opposed to being an actual physical line. Silence or a failure to dispute the boundary can be considered acquiescence to the boundary, such that you can’t stare at your neighbor’s fence for ten years, say nothing about its location, and then one day decide that the fence is on your side of the property line. Under those circumstances, you’ve given your neighbor part of your property, up to the line where the fence was erected, once the fence has been there for ten years.

The other legal theory, adverse possession, allows a trespasser to legal right to use or title over the land of the true property owner. It’s difficult to establish an adverse possession claim. The burden of proof to establish a claim of adverse possession is on the trespasser. The legal holder of title has the presumption of ownership until the adverse possessor can meet that burden. It’s entirely the trespasser’s job to prove that the judge should give him or her ownership over the land.

Adverse possession claims consider the nature of a trespasser’s possession and the length of time the person possesses the land. A trespasser’s possession must be: (1) hostile (against the right of the true owner and without permission); (2) actual (exercising control over the property); (3) exclusive (in the possession of the trespasser alone); (4) open and notorious (using the property as the real owner would, without hiding his or her occupancy); and (5) continuous for at least ten years.

The intent of the person claiming adverse possession doesn’t matter. The doctrine of adverse possession protects one who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of others for the specific purpose of acquiring title. In other words, there is no requirement that the entry and continued possession of the property be done with knowing or intentional hostility. Rather, any entry and possession for the required ten years that is exclusive, continuous, hostile, actual, and open—even if under a mistaken claim of title—is sufficient to support a claim of title by adverse possession.

A very important final point. Like most things involving land, property lines that are redrawn under the boundary by acquiescence or adverse possession theories remain that way even when ownership of one of the parcels changes hands and even if a judge hasn’t recognized the new property line at the time of the ownership change. So if you buy property and the neighbor has a fence or some other marked boundary line that’s been there for more than ten years and is actually over the original property line and onto your land, you’re stuck with that revised property boundary even though you weren’t there in previous decades to challenge the fence that was on the wrong side of the property line, even though a survey of the land at the time you bought it identified a different boundary line, and even though a judge hasn’t recognized the new property line. It’s thus crucial to consider boundary by acquiescence or adverse possession issues when purchasing property so that you don’t find out after the sale that you actually received less land than you thought you were purchasing.