Brett Kepley: What's adverse possession?

Brett Kepley: What's adverse possession?

By BRETT KEPLEY

Last week we talked about how homeowners associations and lake associations can keep a nasty outsider from buying at a tax sale property which is in the association so as to prevent the nasty new owner from denying use of that property to the neighbors.

But what if that nasty tax buyer buys a strip of ground not in an association, and it was turf that you have been enjoying as part of your home for a while?

Enter stage left: ownership by adverse possession and/or right to use by prescriptive easement.

Adverse possession under Illinois law is where one becomes the owner of a piece of ground if one can establish that one has exercised exclusive dominion and control over ground continually and uninterrupted for 20 consecutive years, and such control or domination was open, notorious, hostile and adverse.

Huh?

Possession must be exclusive. If you are claiming ownership of your neighbor's lot because you've been mowing it, you better be the only one doing the mowing, not others (including the owner of record).

Open and notorious? Mow in daylight; don't sneak in at night — who can see what you're doing at night? Or erect a building. Or put in some fencing around the grounds. Build a pier on your part of the lake lot behind your house. Act like you own the ground.

Hostile and adverse? This doesn't mean you are yelling at or throwing things at the owner (save that for the courtroom). It means that you use the property as if you were the true owner.

If the real true owner is knowingly letting you use the property, then such use is permissive and thus not hostile and adverse. Permissive use happens all the time. That's what leases are, for example.

Prescriptive easement is a right that you have to enter upon and use land even if you are not the owner (remember, adverse possession is a claim to ownership of land). To establish a prescriptive easement, you must use the turf for a 20-year period which was uninterrupted, exclusive, continuous and under a claim of right which is adverse to the owner.

Exclusive use in a prescriptive easement doesn't mean you are the only one to use the property. It just means your right to use it doesn't hinge on the right of others to use it.

Alright class, let's review.

Suppose you have a backyard with a fence that overlaps the boundary line of a lot that was recently acquired by a nasty new owner who now demands that you remove that fence and cut your backyard down to match the boundary. But suppose you have had that backyard fence overlapping the boundary for 20 uninterrupted years, and the previous neighboring lot owner(s) never objected or never mentioned to you that they agree to let you occupy that portion over the boundary line?

Ownership by adverse possession? Right to use by prescriptive easement?

Exit stage right: lawsuit.

Problem solved.

And as much as people grumble about our overly litigious society, it sure beats war.

Which is how many turf disputes have been, and continue to be, settled in much of the world.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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