The following scenario happens more than you would expect. You find a home after years of looking and it is perfect. You purchase the home and start a family. You mow the lawn, plant trees, make a garden, and work hard to make sure that every inch of your property looks beautiful. Your property is separated from your neighbor’s lot by an old fence that was put up by the previous owners. You have never had the property surveyed and your neighbor has not either. You believe the fence was accurately erected along the boundary line and have no reason to question otherwise.
Many years later, your neighbor plans to sell her property to an eager purchaser. The purchaser decides to have a survey done of the property and is surprised to learn that the fence separating your properties was not erected along the boundary line, as you both had believed. In fact, the fence was actually erroneously erected twenty-five feet inward from the boundary line onto your neighbor’s property, which means that a twenty-five foot strip of land which you had thought was yours is actually part of your neighbor’s lot. You planted trees and a garden in this strip for years and spent many, many hours maintaining this area. You even constructed a play scape for your kids in this twenty-five foot strip area and watched your kids swing for years. However, after your neighbor provides you with a copy of the survey, you realize that the garden, trees, and play scape are all on your neighbor’s property, and she is now demanding that you remove everything and move the fence to accurately reflect the boundary line. This would result in you losing a 25 foot strip of your property! You sympathize with your neighbor, but you and your family love that strip of land and it has become an integral part of your Property over the years. What are your options? What can you do?
You may be able legally acquire that strip of land under a theory of a legal doctrine called Adverse Possession. Connecticut law recognizes Adverse Possession as a mechanism to acquire legal title to Property. If you can establish title of land by Adverse Possession, you will own the land the same as if you had acquired the land by deed from the owner. However, in order to establish title by adverse possession, you must establish the necessary elements by submitting evidence to the Court.
The following are the elements that you must satisfy to establish a claim that you have acquired land through adverse possession. The elements are established by statute and reiterated by case law in cases, including the Supreme Court case, Roche v. Fairfield, 186 Conn. 490, 498 (1982). First, the owner of the land must be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right. This essentially means that the possession and use of the land must be without permission and you must treat the land as your own. The use must also be exclusive, and shared dominion by you and your neighbor will likely defeat any claim that you acquired the land by adverse possession.
The other elements that you must establish to claim title to land through the doctrine of adverse possession are that your use must be uninterrupted, open, visible, and exclusive, for a period of fifteen years. While each element has been articulated in more detail by the Courts, this generally means that your use of the land must be commonly known and must also be continual. The Courts will examine the specific facts of the case to determine whether your use was commonly known and continual, and look at things like maintenance, frequency of use, and other factors. In a case like the example above, a strong claim may be made that the use was commonly known and continual if the claimant maintained and used the property frequently.
Therefore, if you find yourself in a situation like the example discussed above, you need not forfeit your strip of land to your neighbor notwithstanding an erroneously placed fence if you can prove the elements of adverse possession. In order to make such a claim, you must file an action the Court called an Action to Quiet Title, which is a cause of action used to settle title disputes. If you can prove your case, you will receive an order from the court allowing you to acquire title to the strip of land and the integrity of your lot will be preserved.
Where title is claimed by adverse possession, the burden of proof is on the claimant ... (Citations omitted) The essential elements of the adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner.... (Citations omitted) The use is not exclusive if the adverse user merely shares dominion over the property with other users.... Such a possession is not to be made out by inference, but by clear and positive proof.... The doctrine of adverse possession is to be taken strictly. (Citations omitted). Roche v. Fairfield, 186 Conn. 490, 498 (1982).
Adverse possession can create an absolute title to real estate, which is as good as title by deed from the record owner. But adverse possession as record title requires evidence showing the existence of all elements necessary for adverse possession, and apparently this can be done only in a judicial proceeding to which those to be bound by the decision have been made parties.
The essential elements of an adverse possession sufficient to create title to land in a claimant are that the owner is ousted of possession and kept out uninterruptedly for 15 years by an open, visible, and exclusive possession by the claimant, under a claim of right, with the intention of using the property as his own, and without the owner's consent. The possession must be hostile and under a claim of right, actual, open, notorious, exclusive, continuous, and uninterrupted (Goodman v. Quadrato, 142 Conn. 398 (1954)).
The 15-year period comes from CGS § 52-575 which establishes this time frame for an owner to assert his ownership claim over an adverse possessor.
A landowner who wishes to interrupt an adverse possession claim may serve a notice on the adverse possessor and record it on the land records. Such service and notice is an interruption of the use and possession and prevents the acquisition of a right by continuing the use and possession thereafter.
The notice must be served on the adverse possessor, his agent, or guardian if they are in Connecticut, in the same way lawsuit papers are served. Otherwise, a copy of the notice must be affixed to the house on the land in question or to some other conspicuous part of the premises.
The notice and papers indicating the notice was served must be recorded in the land records of the town where the land is located within three months after service. When the adverse possessor is unknown, the notice must be given by conspicuously posting a copy on the property, serving it on the person to whom the taxes were last assessed, and recording it on the land records.
The law prohibits adverse possession of:
- certain types of land owned by investor-owned water companies (CGS § 47-27(b));
- land belonging to a non-profit corporation organized under Connecticut law with land conservation or preservation as one of its principal purposes (CGS § 47-27(b)); and
- certain railroad and canal land (CGS § 47-26).
RIGHTS OF WAY OR OTHER EASEMENTS
No one may acquire a right-of-way or any other easement from, in, upon, or over someone else's land, by the adverse use or enjoyment of it, unless the use has been continued uninterrupted for 15 years (CGS § 47-37). The use must be so open, visible, and apparent that it gives land owners the full opportunity to assert their own rights (Klein v. De Rosa, 137 Conn. 586 (1957)). The law presumes that after 15 years, the holder of legal title has acquiesced in the use (Aksomitas v. Sough End Reality Co., 136 Conn. 277 (1949)).
A landowner may give written notice to the person claiming or using the privilege of his intention to dispute the right-of-way or other easement and to prevent him from acquiring the rights. The service of the notice and recordation on the land records is deemed an interruption of the use and prevents the acquiring of the right-of-way or other easement by continuing the use thereafter (CGS § 47-38). The notice must be served in the same manner as an original summons in a civil action on the person claiming or using the way or other easement or his agent or guardian if they are in Connecticut. If not, the notice must be served on the tenant or occupants of the interest to which the easement or right-of-way is attached, or a copy must be affixed to the house or the estate or some other conspicuous part of the premises (CGS § 47-39). This notice is considered a disturbance of the right-of-way or other easement that allows the person claiming the right to go to court to settle the controversy. If he prevails, he is entitled to full costs even if he only recovers nominal damages (CGS § 47-41).