Real Estate Q & A: What’s the deal with adverse possession?

By Adam D. Martinez, Esq.

Question:  We purchased a home in Arcadia on a large lot a few years ago with the intention of building a large addition with floor to ceiling accordion glass doors that open to an entertaining patio. In getting our property surveyed, we learned our neighbor is encroaching on to our property by as much as six feet in some areas. Our lot is so large that we don’t really mind and our addition is on the other side of the lot. This has been happening for 5 years. We don’t really mind it, but we read your article about the owner who lost a 3-foot strip of land to his neighbor by adverse possession and we do not want that to happen to us, particularly if we want to sell in the future. We don’t want a major dispute or legal battle, but is there any way to stop the process of adverse possession without going to court?

Answer:  Yes. There are a number of ways to prevent adverse possession. However, one major element necessary to establish adverse possession is that the possessor’s use is ‘without permission’. In other words, your neighbor can only obtain title by adverse possession if he continues to use your property without your permission. There can never be adverse possession where the use of property is done with the permission of the owner. Therefore, if you do not want to stop his use right now, but preserve your right to do so in the future, you should grant him express permission for his use. For example, you can obtain a survey of the strip of land he is using and grant him a license to use that property which is revocable at any time.

Adam Martinez is the Chairman of the Real Estate Litigation Department at Rose Law Group pc. and can be reached at amartinez@roselawgroup.com.

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