Real estate issues: Adverse possession

Some people believe that good fences make good neighbors. It’s a proverb that dates back to the mid-17th century. Robert Frost used it as a refrain in his poem, “Mending Fences,” though Frost appears to have meant the opposite — that boundaries are actually what alienate us. Nevertheless, when a boundary, such as a neighbor’s fence, falls on the wrong side of the property line, it’s one of the primary real estate issues that homeowners encounter across the country, including here in Tennessee.

It is called adverse possession. Technically, a neighbor’s fence, garage or some other structure or activity (such as crossing the property for ingress and egress) that crosses onto a neighbor’s property is trespassing — at least at first. If it continues for a substantial amount of time, a Tennessee court may award the other party the right to use the portion of property in question.

If a homeowner attempts to remove the other party from his or her land, it could end up in a court battle. The other party will need to provide evidence supporting four elements that must be met in order to retain use of the land. Depending on how long the situation has existed, the homeowner whose property is being encroached upon could end up losing part of it.

There may be ways to keep this from happening. One way is to provide the other party with written permission to use the property while the homeowner owns the property. In other cases, it may be necessary to file a court action if the other party refuses to leave the property or to accept another, less litigious resolution. Considering the ramifications of adverse possession, it might be a good idea to sit down with a real estate attorney to determine the best course of action based on the circumstances.

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