At Parnell & McKay, we handle a large number of property litigation cases. One such type of litigation is claims made through adverse possession. It is one of the oldest forms of law in property, and involves the taking of title to property without having to execute a written deed. It most commonly arises in boundary line disputes, and can involve something as innocuous as the misplacement of a fence by a friendly neighbor. However, the effects this doctrine can have on people’s property can be immense, so it is important to try to understand the concept of adverse possession and to seek legal advice as soon as possible.
Basically, the initial test is whether the person claiming adverse possession has acted as the true and lawful owner of the property. The reason being is an adverse possession claim must be open, notorious and continuous throughout the statutory period. Open means that the claim is obvious. In our sample above, it is the placement of a fence across the boundary line of a neighbor. This can also be done in the form of farming, building an addition on a house, or just simple planting bushes and trees and tending to them over time.
The claim must also be “notorious”, which is a nicer way of saying that use of the neighbor’s property cannot be by that neighbor’s permission. It is ok to be operating under a mistake of where the true boundary line is, but if the neighbor is aware of the issue and says its ok, then there is no “adverse” possession.
The final part is the use must be continuous for the statutory period. In New Hampshire, this means for twenty years. So, in our example above, the neighbor (or his predecessors) would have had to have the fence on his neighbor’s property for twenty continuous years.