Keeping your neighbors on their side of the fence may not be enough to protect your land from being taken through adverse possession. A neighbor using or maintaining land on the other side of a fence located inside your property line may eventually be successful in claiming ownership by adverse possession. Such claims often involve a strip of land lying between two properties which for one reason or another, has been used by the party who is not the true title owner.
In Missouri, adverse possession is shown by demonstrating that the possession is (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for ten years.
- "Hostile and under claim of right" means possession must be opposed to claims of all others, and occupation must be with intent to possess it as their own. This may be shown by the clearing or mowing of property on their side of a fence, by using that portion of the property as part of their yard, by erecting barriers, or by establishing a trail through the disputed parcel.
- "Actual" possession is shown by acts of physical occupancy over the entire parcel without claim of title indicating an ability to control all of the land.
- "Open and notorious" possession is shown by visible acts of ownership over the property which gives the title owner notice of the claimant’s actions and provides the true owner an opportunity to reclaim control.
- "Exclusive" possession is shown by the claimant holding the land for their own use and not that of others, including the true title owner.
- "Continuous" means without interruption for the entire statutory period of ten years, but does not have to be the immediate prior ten years. A claimant may gain title by adverse possession over a past period and claim ownership from that prior date.
These cases are very fact specific and consider the location, nature, and typical use of the property in each case. For example, one exception to adverse possession is the “wild lands exception,” which occurs where the property claimed is entirely undeveloped. In this instance, activities sufficient for adverse possession are less likely because the true owner is less likely to be present, making the open and notorious element more difficult to prove.
To protect your property, it is best to take action asserting your rights of ownership. Acts claiming ownership by others should be met by asserting your control, removing them from possession, removing barriers or other items placed by others, and making a record of your permission for any such use. Any agreement for permission should be formalized, such as by granting and recording an easement. Since an adverse possession claim may be made at a later date, you should also provide possible successors with these records. Knowing your property lines and dealing appropriately with those using your land may help avoid a successful claim of adverse possession.