06/13/2014 09:27 am ET Updated Aug 13, 2014

Neighborly Accommodation or Adverse Possession?

A recent Montana Supreme Court decision involving an easement across a ranch is a reminder to carefully investigate, both before and after purchase, the claims of non-owners who are using or occupying land (Lyndes v. Green). Adverse possession allows one to acquire ownership of land (except land owned by government) by openly and exclusively occupying the land under a claim of ownership for a period of years set by state law. An ownership right to cross land (easement) may be created in a similar manner. In contrast, occupying land while acknowledging someone's superior rights (as a renter might) does not establish adverse possession. An outsider who obtains the landowner's permission to use or to cross land as a "neighborly accommodation" does not create adverse possession ownership.

In the Montana case, a neighbor was crossing the ranch in question when it was purchased. The purchaser of the ranch did not object to this. However, when a dispute arose between the neighbors, the ranch owner chained and locked the gate that provided entry into the ranch. When the neighbor protested this exclusion, asserting a right of access, the ranch owner placed a key to the lock under a rock so that the neighbor could open the gate. Additional confrontations escalated to chain cutting, lock smashing, and litigation. Hunting related problems apparently sparked the dispute.

The neighbor never asked for or received permission from anyone to use the easement. Based upon the facts, the neighbor had acquired a prescriptive easement (one acquired by adverse possession) before the landowner purchased his property. The scope of these possessed rights extended to the uses the neighbor had engaged in, such as transportation, ranch work, and recreation. In order to extinguish these rights, the landowner would have to adversely possess the easement for a continuous five year period, a process labeled "reverse adverse possession."

While Montana law recognizes that a neighborly accommodation is not evidence of adverse use, passively allowing one to use land is not evidence of permissive use. Permission means affirmatively granting consent. Wanting to get along with neighbors and not contesting their use does not create neighborly accommodation.

A Montana Supreme Court dissenting Justice wrote that this situation involved a form of neighborly accommodation that need not be specifically stated. Trial testimony established that a long standing local custom allowed one to cross another's land provided this person closed gates and otherwise respected the property. Since this usage was permissive, there was no adverse possession for the statutory time. Placing the gate key under a rock indicated granting permission, not adverse use. This Justice saw no clear and convincing evidence of adverse possession (the legal requirement). Finally, the Justice stated, the majority decision only creates greater friction between neighbors since cooperation and neighborly accommodation may be used against a landowner.

The decision highlights the need for an accommodating landowner to affirmatively establish permissive use in order to avoid adverse possession. A document signed by the neighbor indicating that her use is with the permission of the landowner, and not under a claim of ownership, will frequently defeat a subsequent adverse possession claim. However, a landowner's mere objection to the use, such as a letter from an attorney that is ignored by the non-owner, may actually strengthen an adverse possession claim. The continuing use in spite of the landowner's objection may provide proof that the non-owner asserted an ownership right to use the land. If the landowner objects, then an eviction proceeding must be undertaken.

Adverse possession is not recorded in public records. Consequently, the land must be physically inspected and evidence of outsider usage must be investigated and acted upon. Subdividing or other future land uses are complicated by adverse possession rights. Squatting is frequently used interchangeably with adverse possession although, in some technical usages, squatting refers to occupying buildings. Adverse possession may also create a public road or public easement that anyone may use. Consult an experienced attorney in adverse possession situations.