Ask Brian: What Can I Do About Adverse Possession?



Ask Brian is a weekly column by Real Estate Expert Brian Kline. If you have questions on real estate investing, DIY, home buying/selling, or other housing inquiries please email your questions to askbrian@realtybiznews.com.

Question from Willis in NC: Hi Brian, We recently bought some acreage with a cabin in the country. It has a driveway shared with a neighbor behind us. Coming off the main road, the shared gravel driveway runs along our property line. Shortly before our cabin, it “Ys” to our cabin and the other portion continues to the neighbor’s cabin. We should have known better but it turns out there is no legal easement or other description about how this driveway is shared. Last week, I talked to the neighbor about splitting the cost to put down some fresh gravel. They replied that they were fine with it the way it is and weren’t interested in helping pay. Before the conversation got a little ugly, we talked about the history of the shared driveway. That’s when I learned there is no formal agreement to share the driveway. My neighbors were given verbal permission by the previous owner of the property that we bought.

That’s when the conversation got a little heated. I told them we didn’t want to stop them from using the driveway but I did expect them to help with the cost of upkeep. To my shock, the neighbor said this is the way it has been for 12 years and he has no intention of paying for gravel anytime soon. He also said that in fact, since the ownership had changed, he was thinking about having the property lines redrawn to include the driveway as part of his property. He said that after 12 years, he could do this through adverse possession laws. Is he correct? What can I do? I’m worried because this guy didn’t seem to want to work anything out.

I did call the previous owner to get some more history about the shared driveway. He told me that it was about 12 years ago when the driveway was extended to the neighbor’s property. Originally, the two pieces had been one parcel without a driveway extending to the back acreage. One day, the previous owner showed up to find an extended driveway plowed through to the back acreage. Of course, there was a big discussion about the trespassing but in the end, the previous owner gave verbal permission for the shared driveway. He said that since then, he has laid new gravel about three times but only up to the point where the driveway “Ys” to our cabin.

The bottom line is that we don’t want to lose possession of the driveway at the edge of our property. We also want the maintenance costs to be shared. What should we do?

Answer: Hello Willis. I don’t like getting into legal issues like this because I’m not an attorney. With that said, I also empathize with your situation. Time is running and time is usually the key to adverse possession. You probably want to take action quickly to protect your full ownership of the driveway on your land. The first thing that I suggest is contacting the title company that you took out a policy with when you bought the property. They never should have issued a policy without a clear legal description of the shared driveway. It’s reasonable to expect the title company has an obligation to help you settle the dispute.

Willis, I don’t know how this is going to turn out for you. But if it does end up as an adverse possession case in a court of law, I came across this NC legal precedent that sounds like it favors your situation.

In Jones v. Miles, the claimants were given permission to use a driveway on the adjacent property owners’ land. 189 N.C. App. 289, 290 (N.C. Ct. App. 2008). The claimants proclaimed that they believed they owned the land through adverse possession, but they sought permission to be neighborly. Id. at 293. They argued that because the use was originally hostile, the subsequent giving of permission could not transform the use into a permissive one. Id. The Court of Appeals of North Carolina disagreed, stating that receiving permission negated the hostile nature of the possession. From the true owner’s point of view, use began as permissive and the claimant did nothing that amounted to open and notorious use that would have put the true owner on notice of the change in the use’s character (i.e. that the use remained hostile). Id. at 293–94. Therefore, use was not hostile and the adverse possession claim failed. Id. at 295.

For others who want to protect themselves from possible adverse possession, here are a few general suggestions:

  • Inspect the property regularly.
  • Make sure that the property is secured. Close gates at entrances to the property and be sure all buildings are secure.
  • Posting ‘No Trespassing’ signs is especially important if the property is not occupied.
  • If you find someone on the property, give written notice as soon as you realize that they are there.
  • If you have a reason for someone to use the property, offer to rent it to them with a written lease.
  • If they won’t leave when told to call the sheriff and file a report.
  • Ultimately, hire an attorney. You might need to file an eviction notice or other legal notice to quit the property. It’s good to have legal counsel before taking further action.

What can you add? Please comment.

Our weekly Ask Brian column welcomes questions from readers of all experience levels with residential real estate. Please email your questions or inquiries to askbrian@realtybiznews.com.

Author bio: Brian Kline has been investing in real estate for more than 35 years and writing about real estate investing for 12 years. He also draws upon 30 plus years of business experience including 12 years as a manager at Boeing Aircraft Company. Brian currently lives at Lake Cushman, Washington. A vacation destination, near a national and the Pacific Ocean.