Question

Lisa and Danny are neighbors that live on Guerrero Street. Fifteen years ago Lisa built a gazebo. She frequently used the gazebo, but she was not aware that actually the gazebo was on property belonging to Danny. A month after the gazebo was built Lisa built a fence between her and Danny’s yard, and the gazebo was on Lisa’s side of the fence. Fifteen years later, Danny has a survey done, and he discovers that the gazebo is on his land. Danny brings a suit to evict Lisa from the land. Does Lisa have a defense? Assume that the state in question has an adverse possession period of ten years.

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Answer 1

Solution

Hence Yes, Lisa can defend herself using the doctrine of adverse possession

The Adverse possession

A person-trespasser comes into someone else’s land and becomes the legal owner of the land, provided the possession satisfies certain criteria. The requirements are:

1. The Continuous-the trespasser must have continuously possessed the property for a period. The trespasser should have a enquired, returned and re-acquired/reused the property for claiming under adverse possession
2. Hostile-The trespasser infringes on the rights of the owner. Hence those properties which have been rented or given with consent by the owner are not adverse possessions
3. Open and notorious- it must be obvious to everyone, that the land is being possessed. Secret possessions are not eligible for adverse possessions.
4. The Actual--The property is in physical possession of trespasser
5. The Exclusive--The adverse possessor does not share it with the owner. the trespasser has excluded true owner from using the property. He treats as if this is her own property
6. The Period- the land must have been owned by the trespasser for a minimum period continuously.

Sometimes such possession happens by complete mistake. Some states require that the trespasser to have paid taxes on the property during this time period. Some even require some form of documents. S

The Adverse possessions can be prevented by

1. The Posting signs against trespassers. Some states do not accept this for defense by owners
2. The clearly delineating the land and fencing
3. The Keep watching regularly for trespassing
4. The Giving the land with a written consent /agreement
5. The Renting the property
6. The Using legal and police help

Lisa’s defense

1

Continuous-Lisa has laid the fence before fifteen years and has been continuously using it

2

Hostile-Lisa did not seek permission nor did she know that the property belonged to Danny. Danny did not give any verbal, tacit or written consent to Lisa

3

Open and notorious- the possession is open and everyone including Danny could have noticed it easily. Lisa laid a fence that openly shows that she is using the property as her own

4

Actual—Lisa is in actual possession of the Gazebo and the land associated

5

Exclusive-Lisa has been in possession of the property without even access for Danny. She has excluded the owner from the property by using a fence

6

Period- the minimal adverse possession period for the jurisdiction is 10 years. Lisa has been possessing for more than 15 years.
Hence Lisa can make a case for adverse possession and she will be entitled to ownership