I have an old fence that is not on the property line according to a survey. I have been told that the fence is the property boundary since it has not been disputed in over seven years. Is that right?

Land that is incorrectly fenced in may be acquired by the doctrine of adverse possession after certain requirements are met for a statutory time period, which varies from state to state. The basic requirements are as follows:

  • Possession of land must be “hostile,” meaning that the adverse possessor doesn’t have permission to use or occupy the property.
  • Possession must be exclusive, meaning the adverse possessor isn’t allowing the true owner or anyone else making claims of ownership access to the land.
  • Possession must continue uninterrupted for the entire statutory period, which varies from state to state (the period is as much as 20 years in some states or as little as seven years in others). However, periods of adverse possession can be “tacked” together to satisfy the time period requirement; for example, if adverse possessor #1 conveyed the property to adverse possessor #2 but all of the requirements continued to be met, the time period doesn’t start over.
  •  Possession must be visible or conspicuous – there’s no such thing as secret adverse possession. There’s typically no requirement that the true owner have actual knowledge of the trespass, but it must be conspicuous enough that the owner would have noticed it if he or she had been attentive.
  • Possession must be actual, physical possession, not simply a claim of ownership.

In addition to those general requirements, some states also require the adverse possessor to have color of title to the property (e.g., something that evidences ownership or possession) and pay property taxes for the property being claimed or for land adjoining the property being claimed for the entire statutory period. Fencing in the property may be enough to satisfy the “visible” and “actual” requirements because it is an actual physical intrusion on the land that should be noticeable to the true owner. If the other requirements are also met, the adverse possessor can bring an action to quiet the title to the property and thereby officially obtain ownership.