Adverse possession law fuels land dispute

Walter and Wanda Martens say they saw their neighbors cutting down part of a fence on the boundary of their Christian County property and told the neighbors to stop.

There was only one problem: The neighbors said it was their land.

The Martens are headed to court May 16 with neighbors Mark and Lory White to determine who owns nearly 20 acres of rural land.

Springfield attorney Paul Sherman represents the Martens.

“My clients bought some land back in 1973, and it was represented at the time that they were buying a parcel up to a fence – a significant number of acres,” Sherman said. “At the time, they were given an affidavit of adverse possession that described that fence. So they were supposed to own the land west of that fence. Then, we had a neighbor on the other side of the fence last year tear down a part of the fence, so we had to file an action to get that disputed property resolved.”

The Whites have said that the land is included in the deed for a 40-acre plot they purchased in 1990, and the Martens are the ones using the property without legal permission.

The Martens are claiming that the deed of adverse possession they received with their land purchase entitles them to ownership of the parcel.

But Ozark attorney Patricia Shilling, representing the Whites, said she’s not sure what that document actually entitles the Martens to.

“Quite honestly, we cannot determine what the legal effect of an affidavit of adverse possession is, because it’s just a document out there,” she said. “I think it’s uncharted territory. Whether or not the judge gives it any legal effect I guess is the question.”

English common law

The law at the root of the problem, adverse possession, is a very old law on the books in several states, including Missouri.

The concept dates to English common law.

Missouri’s statute of limitations on filing a claim for recovering possession of real property is 10 years, meaning property owners have that long to get someone off of their property before the person inhabiting the land can legally claim it as their own, according to Neil Guion, real estate lawyer for Lathrop & Gage’s Springfield office.

“If you file a petition after that that says, ‘I own this property,’ the response is, ‘You’re too late. I’ve been on it, and I’ve been tilling it and taking crops from it or mowing it or whatever. I’ve been living on it longer than (10 years), so your claim is barred by time,’” Guion said.

Sherman said that adverse possession claims happen more often than people might think.

“It happens all the time, and people try to figure out, ‘How do I fix this?’” Sherman said. “You rely on this to be the boundary, you put your garage there, and then the next thing you know somebody says, ‘Wait a minute, this survey says I own your garage.’ This is the way the law allows folks to resolve that dispute.”

Guion agreed that adverse possession claims are not uncommon.

“A lot of times boundaries are not that clearly defined,” Guion said. “It’s not very common that somebody moves into somebody else’s house and becomes the owner. I suppose it could happen but that’s very rare.”

A dispute over a piece of land the size of the parcel in the White v. Martens case, though, is much more rare, he said.