Free Land!

ADAM BIRK

CAPE GIRARDEAU, MISSOURI

Free Land!  If this sounds too good to be true, guess what?  You are correct, it isn’t true, I have no free land to sell you.  But is free land ever possible?  Well, yes, sort of, there are attorney’s fees of course.  

The legal term is Adverse Possession.  The idea behind Adverse Possession is that if someone takes possession of another’s land for a statutory period of time, the person with possession gets to take the land free and clear.  With all laws, or operations of the law, there is always a governmental interest being supported or a public policy being promoted.  I’m sure we can all agree that the government is batting 1000 at working in our best interest so there is no need to discuss the quality of these laws.  But for Adverse Possession, it is important to understand the public policy behind it.  If land goes unused, it produces nothing; no revenue, no GDP, no taxes, nothing.  As a society we need our resources to be productive to build up the community.  Someone who takes no responsibility for their land and leaves it completely unproductive and uncared for will eventually lose it to the person who does care for it.

Adverse Possession (AP) has 5 key elements: Actual Possession, Hostile, Open and Notorious, Exclusive, and Continuous.  If you do not meet one of these elements, you will not win the land by AP.  To be clear, an absentee landlord who does nothing but collect rent checks is not losing his land to AP.  Sending rent checks is not a very hostile act.  Common cases for AP within agriculture would be a chunk of your neighbor’s property that’s on your side of the ditch so you farm it.  Or your neighbor puts up a fence that’s not on the line and takes a sliver of your property.  Or an old church building out in the country that belongs to some non-profit but it’s been totally forgotten about.  

If you think you have an AP claim or your neighbor may have an AP claim against you, consider these key points and examples.  Consent defeats AP.  For example, if you each have a parcel of the other’s land on your side of the fence and you each agree to farm everything on your side and call it square, no AP has occurred.  Consent was given and no hostile act occurred.  

Another scenario, a small chunk of the neighbor’s land is on your side of the ditch, you don’t farm it, you do mow it and each of you occasionally parks equipment on it.  This is unlikely to be AP.  The act of mowing may be an act of ownership in some circumstances but it can also be very customary and is generally speaking not hostile.  Actual possession would consider how often the equipment is parked by both parties and who wins if both want to park at the same time.   Open and Notorious will consider how long is equipment left there and whether a reasonable landlord would notice it.  Lastly, continuous means the adverse use must occur for the statutory period of time without breaking.  In Missouri this is 10 years but each state may vary. If you think you have an AP claim for or against you, reach out to an attorney to go over the details of Adverse Possession.  Even if you are at the beginning of a potential AP claim, consult with your attorney to be sure you are protected and documenting properly.  If you have questions regarding Adverse Possession or topics you’d like me to discuss, please email me at abirk@birklegal.com.   ∆

ADAM BIRK: Birk Law Firm, LC