Q: I had the four corners of my land staked by a surveyor. In doing so, I noticed my neighbor's shed, which is on a concrete slab, is about three to six inches on my property. A hedge divides my land from hers in the back yard, although the neighbor pulled out half of the hedge and uses the three to six inch strip for the shed and for planting.
What is the law? I would like to keep peace with the neighbor. We did tell them that they are on the land and they said they thought the hedge belonged to them but were terribly sorry after they found out it wasn't their property. However, our neighbor still plants on the strip. We would appreciate the simplest solution of all possibilities that might be available.
A: There is a very old doctrine in the law known as "adverse possession." If we go back to our history books, this is also known as "squatters' rights."
The theory of the doctrine of adverse possession is that the person who holds or uses property adversely against the rightful owner should ultimately be entitled to clear title. But not every possession of land will turn into fee-simple ownership. As the name of the doctrine implies, the possession must be adverse, hostile, actual, notorious, exclusive, continuous and under the claim of right.
Needless to say, these sound like highly complex legal concepts, and to some extent they are. However, in the words of one judge, "the person claiming the property by adverse possession must unfurl his flag on the land and keep it flying so that the owner may see, if he wishes, that an enemy has invaded his domain and planted the flag of conquest." Thus, the person claiming by adverse possession must do something to alert the true owner that the stranger has taken occupancy.
Turning to your specific question, you did not indicate where you live. In all three surrounding jurisdictions, the law--although similar in principle--has different time requirements for a successful adverse possession claim. In the District of Columbia, the law is that a person obtains valid title to land if the adverse possession is for a period of 15 years. You have indicated that your neighbor has had the shed up for three years and bought her house four years ago. In Virginia the period of adversity is also 15 years, while in Maryland the law requires 20 years for a successful claim.
Keep in mind that the burden of proof is on the claimant--your neighbor--to meet the test for adverse possession. In order to actually get title to the land in question, your neighbor will have to file a complaint in court in what is known as "an action for quiet title." Needless to say, this is both time consuming and expensive, and your neighbor may not be inclined to go ahead with this action.
To answer your specific question, you can avoid your neighbor's successful claim of adverse possession by removing one of the legal elements required for this claim--namely adversity.
You have indicated that you have already discussed this with your neighbor. I would suggest that you send your neighbor a letter, certified, return receipt requested telling them that you recognize that they are on your land and for a limited period of time you are going to permit them to keep the shed on your property. According to one judge, "if the use by me of my neighbor's land is, on its face, permitted by my neighbor as a matter of neighborly accommodation, the use is not adverse or hostile."
Put a copy of the letter and the return receipt among your valuable papers, and periodically--perhaps every five years--you may want to renew the permission to your neighbor.
And don't forget that if you sell your house, inform your buyers of this arrangement.
One note of caution: under the doctrine of adverse possession, the courts permit subsequent owners to obtain the benefits of the doctrine, if the 15- to 20-year period has been continuous and hostile--regardless of who owns your property. In other words, if your neighbor sells their house, their buyer would be able to pick up the benefits of the potential adverse possession claim. Accordingly, when your neighbors decide to sell the property, I strongly recommend that you insist that the shed be torn down.