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"Ask Your Attorney" Column

About a Neighbor's Claim of "Adverse Possession"

Dear Counselor: My neighbor of 10 years and I have always had a friendly relationship. So, I never said anything about the fact that the garden he put in near our shared property line actually extends on to my property by about 10 feet. However, now I've signed a contract to sell my house, and the new survey showed the encroachment. The buyers are demanding that the garden be removed from my property before they will close -- but when I talked with my neighbor, he told me that he has a right to maintain the garden because of "adverse possession." What is adverse possession?

Dear Client: Adverse possession (also called "squatter's rights") is an activity through which a person who is not the legal title holder of land can become the legal title holder, by performing certain acts on the land, in a certain manner, for a certain duration of time. In Wisconsin, state law clearly spells out the circumstances in which a claim of adverse possession can arise: real estate must be continuously and exclusively occupied by the person claiming adverse possession; for an uninterrupted period of at least 20 years; and, the real estate must be protected by a substantial enclosure, or, "usually cultivated or improved." According to Wisconsin courts, adverse possession must also be "hostile," which generally means the possessor did not have the true owner's permission.

Your neighbor likely hasn't maintained the garden long enough to establish adverse possession. Explain to him why he doesn't have a right to continue to maintain the garden on your property, and why you need it to be removed -- hopefully, he will be reasonable, and cooperate with your request. If not, you will have to take action yourself, which could include having your neighbor declared a trespasser, and thrown off his garden patch, so you can close your deal.

Sincerely,
John L. Maier, Jr.
Robert VanScoyoc

Sweet & Maier, S.C., Attorneys
114 Church St.
Elkhorn, Wisconsin
262-723-5480
www.wisclaw.com

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