How You Can ‘Stop the Clock’ Against Claims of Adverse Possession

For most Rhode Islanders, there is no more exciting feat in their lives than when they can finally become homeowners. A home is often the largest investment many citizens make in their lifetime, so the gravity of the purchase is well warranted.

Purchasing property comes with many complex aspects, some of which are extraordinarily easy to overlook. Even after an extensive title report has been conducted, inspections have been completed and disclosures are made by the seller, there remains one issue that many property owners may not discover until it is too late. In fact, you may be quite disturbed to know that many Rhode Islanders have lost portions of their property due to a common law function known as the doctrine of adverse possession.

However, there are specific proactive measures that you can take to ensure your property never succumbs to being taken by adverse possession. This article provides a breakdown of what adverse possession is, the potential consequences of adverse possession, and how to stop it.

What Is Adverse Possession?

The Doctrine of Adverse Possession is a common law doctrine that allows an individual or entity to obtain title to property which they do not own if they can show that they have been using, residing on, improving, or constructing upon the property of another for at least 10 years.

In Rhode Island, if an adverse claimant can show that they have used someone’s property openly, without the owner’s consent or objection, in a manner that is exclusive to them for a period of at least 10 years, then that individual or entity may file an action in Superior Court to “quiet title”, whereby they may lawfully move to seek title of your property.

Though situations where someone takes an entire property by adverse possession are relatively uncommon, what is extremely common are situations where homeowners discover that a neighbor’s shed, garage, driveway, fence, pool, etc. are actually located on their property. Once the homeowner discovers this issue, many times it is too late to stop the “tolling period” for a claim of 10 years of use, and the homeowner many times loses that portion of their property.

Consequences of Adverse Possession

It may sound harmless to some to lose a fence line along their border, potentially a few feet that a neighboring shed is located on, etc., but the ramifications of such property loss have a much greater impact than people may think. As an example, consider the story of a property owner who found after a survey that his neighbor’s driveway was encroaching approximately five feet onto an undeveloped lot he also owned. The neighbor’s encroachment had gone unaddressed for roughly 15 years. The neighbor, once his attorney expressed to him that he had a valid claim for adverse possession, filed an action for quiet title against the portion of our client’s property which the driveway encroached upon. The neighbor’s action for quiet title was affirmed, and he received the roughly 5-foot strip of undeveloped lot by adverse possession. The most devastating part of this story is that the property owner wished to develop that lot at some point. However, the owner’s property no longer met the dimensional requirements for development within the town it was located. Thus the lot essentially lost all developable value, merely because of those few feet.

That story is an example of how someone, through no fault of their own, can fall victim to a claim of adverse possession.

How Do I Prevent Against a Claim of Adverse Possession?

Despite the previously referenced story, there is a very particular set of steps a property owner must take to end the tolling period for a claim of adverse possession.

As previously mentioned, an adverse claimant cannot make a valid claim to adverse possession until they have been engaged in their conduct of adversely possessing your property for a period of 10 years. It is important to note, that an adverse possessor can “tack on” the years of use if their predecessor in title was engaged in the activity which the adverse possession claim is subject to. For example, if the prior owner of your neighbor’s property built a shed encroaching on your property 12 years ago, but your neighbor bought the property from the prior owner only 7 years ago, your neighbor can still claim the 12-year period for purposes of showing he has met the 10 years, even though his personal involvement was only 7 years.

It is always important to consult an attorney if you have concerns over any encroachments onto your property, as he/she can tell you the exact boundary lines of your property, and whether any encroachments exist.

If an encroachment does exist, it is extremely important that you and your attorney take proactive measures to prevent against a claim of adverse possession. Remember, once the 10-year period has passed with no interruption, the claimant has a valid claim to adverse possession.

If the 10-year period has not yet lapsed, it is extremely important that you enlist your attorney to transmit what is called a “notice of intent to dispute” to the encroaching neighbor. A notice of intent to dispute is a written correspondence that when served on the encroaching party by a disinterested party, and (afterward) recorded in the land evidence records, effectively stops the clock from running on any adverse possession claims. For example, if your neighbor’s encroachment started 5 years ago, and the notice of intent is served on him and recorded in the land evidence records, his “tolling period” is stopped at the 5-year mark, making it impossible for them to work toward the required 10 years.

The notice of intent does not even require that your neighbor remove their encroachment. Should you wish to avoid friction with neighbors, you can simply permit them to keep their encroachment, while protecting your title in that portion of the property by transmitting the notice of intent.

Conclusion

If you have concerns that your property could be on the clock toward an adverse possession claim, we encourage you to consult with our land use attorneys well-versed in preventing, pursuing, and successfully defending against claims of adverse possession in all forms. Give us a call today at (401) 453-1200, and we will be able to assist. Protecting your rights to property is paramount, given the stakes.

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