Do I have a case for adverse possession?

Question Details:My farm fence has been there for 45 years. Recently the property on the other side was purchased and the new survey says this fence is on the other property. Is this a case of adverse possession? I have used this property for 45 years.

Asked 5 years ago under Real Estate | 3506 Views | More Legal Topics

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M.D., Member, California and New York Bar | FreeAdvice Contributing Attorney Answered 5 years ago

If a person moves into possession of property, improves it and possesses it in a public manner, then after a certain amount of time he will acquire title to the property even though it is actually owned by someone else. The idea for adverse possession has at its root that land should not lie idle. If it does, it is wasted to the community. Therefore, if someone moves onto the land and makes it productive, that person may earn the right to claim it as his or her own.

Adverse possession requires, as a minimum, the following five conditions being met to perfect the title:

  • Actual possession of the property
  • Open and notorious use of the property (not secretive) 
  • Exclusive use of the property
  • Hostile or adverse use of the property (either mere occupation of the land or knowledge that the land is someone else's) 
  • Continuous use of the property (it's also possible to “tack” periods of successive adverse possession by successive owners

Additionally, some states require that the possession be "under color of title," which means that that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so.  Also, many states require the payment of property taxes for a specified period of time.  Finally, a few states also require that improvements be made upon the land.

My research suggests that in SC just the initial 5 elements need be met and the duration of such possession is 20 years.

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