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Every year, in the spring, another farm publication runs a story about how to take land from your neighbor via adverse possession based on the idea that a fence moved a while back. It always generates interest and discussion, but when the facts and the law are pealed back far enough, rarely does the back 40 become the back 42. So, let us peal back Iowa Adverse Possession cases and take a look.

Iowa Adverse Possession

In Iowa, adverse possession determines acquisition of title (not use) to property by possession. The doctrine of adverse possession is based on the 10-year statute of limitations for recovery of real property in Iowa Code § 614.1(5).   A party claiming title by adverse possession must establish hostile, actual, open, exclusive, and continuous possession, under claim of right or color of title for at least ten years.   Proof of these elements must be "clear and positive." Because the law presumes possession is under regular title, the doctrine of adverse possession is strictly construed. That means it is not going to be something the court wants to find.

Elements for Adverse Possession each have their own hurdle to overcome. Consider each in turn

1.    Hostile can be demonstrated by acts of maintaining and improving land. For example, the making of improvements on disputed strip of land by occupant were acts characteristic of an owner rather than those of a mere user who owns adjoining property.  Occupancy must have been with the intention to claim title. Hostility refers to declarations or acts that show the a person claims a right to use the land.". The intention to claim adversely may be shown either by words or by acts.   Interestingly, payment of taxes is not essential to the acquisition of title by adverse possession.  Permissive use of land is not considered to be hostile or under a claim of right. Continued use does not, by mere lapse of time, become hostile or adverse.  So if your neighbor knows you cut through his yard and waves to you when you do it, the hostility is defeated.

2. Actual Possession does not require claimant to live upon land or to enclose it with fences, or to stand guard at all times but it is enough if claimant maintains such possession and exercises  conduct of  like true owners of similar property would..  Therefore, the conduct to claim a building is different than the conduct required to claim a wood lot.A claim of ownership may be show by receiving the rents, issues, and profits of the property, or improving it, or by paying for insurance on the property.  

3. Open/Notorious is demonstrated by showing that the true owner would be put on notice that somebody else is claiming the ground.  Signs, buildings, and cropping are good indications that somebody is using your ground.

4. Exclusive. A mixed, shared or scrambled possession is not exclusive and will not ripen into title. Again, when you cut across the neighbor's yard and he uses the same route, you are not establishing possession. If you fenced him out however, that would be exclusive and for your benefit.

5.    Continuous

a.    Under either Claim of Right or Color of Title. First, a Claim of Right is described as "I think the land is mine". Good Faith is essential. When knowledge of lack of title is accompanied by knowledge of no basis for the claim, a claim of right cannot be established.    In other words, if the person claiming adverse possession knew that the land was not theirs then their Claim of Right basis for adverse possession fails.  An example of this is where a woman attempted to claim a strip of her neighbor's land by adverse possession.  The court denied her claim because she knew it was not her property, even though she had treated the property as her own for thirty years.  Compare that with Color of Title which is "somebody gave me a document that says its mine". For example, mistyped deed, title or will that leads one to believe they own part of the neighboring property. Color of title is that which in appearance is title but in reality is no title. A void deed taken in good faith affords sufficient color of title to sustain the a claim of adverse possession by one who, relying thereon has taken and held the possession for the required length of time.  So if you take a deed for the SW ¼ of the SW ¼ of Section 6 and live on it and hold it for ten years, even though you were only sold the South ½ of the SW ¼ of the SW ¼ of Section 6, you may have a claim.

6.    For ten (10) years. This is based on Iowa Code. Consider the scenario where for years you have maintained an abandoned railroad right of way as your own and otherwise meet all the elements for adverse possession. Perhaps, under Claim of Right, you thought the land was yours when the tracks were pulled up or under Color of Title, the strip was conveyed to you, when in reality, it belongs to an out of state investor. 5 days before the end of the 10 years, the investor's summer intern comes out and says, "Thanks for taking care of that, we are putting in a new ethanol spur line here, but you can take your last crop off." The ten year period is most likely not met and you are out of a strip of land.

It is harder to establish adverse possession than claiming the fence post moved 10 years ago and now I own it. I would think conversations with neighbors would be a better use of your time and money to ensure that everyone knows who owns what.
    

 

Thursday, December 05, 2019
  • Patrick B. Dillon
  • Jill Dillon
Dillon Law PC
Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
Dillon Law PC
Jill Dillon focuses on family law, estate planning and IRS matters. Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill spent extensive time advocating for low income tax payers in front of the IRS and the State of Iowa Department of Revenue while at Drake.

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