The Adverse Possession Doctrine

A person can lose a portion of their real estate through the doctrine of adverse possession. In Idaho, the adverse possession doctrine can be used by a neighbor to take a portion of your land if that neighbor satisfies the following requirements:

  1. That the neighbor or the previous owner has occupied that portion of land for at least 20 years, and
  2. The neighbor or previous owner has paid the taxes on that property during this time.

Here is an example of how the adverse possession doctrine could work against you. Assume that you and your neighbor each have a home built on a large parcel of land, say five acres. The neighbor’s home was built in the year 1990, and his home encroaches 10 feet on to your property. If the neighbor can prove that the home was been there more than 20 years and that he has paid taxes on that portion of the property, then the land belongs to him and he cannot be required to move or tear down that portion of his house.

A more complex question arises when the issue of land ownership involves a fence built in the wrong place. That is, a fence which a neighbor builds not on the boundary between the properties but several feet or yards on to your property.

Let us again turn to the example of the two neighbors with homes built on five acre parcels.  Assume again that the fence was built in 1990. So the 20 year requirement has been met. However, it is unlikely that your neighbor has been paying taxes on the strip of land. Therefore, the neighbor cannot take this land under the doctrine of adverse possession. However, he may take the land using a different doctrine – the Boundary by Agreement doctrine.

The Boundary by Agreement Doctrine

In the 1985 case, Herrmann v. Woodell, the Idaho Supreme Court recognized this doctrine as applying to land located in the State of Idaho. Under this doctrine, a court can rule that the boundary between the two landowners is determined by the location of the fence if it appears that the two parties treated this as the boundary either by express agreement or by conduct.

Obviously, the phrase “by conduct” is fraught with danger. A neighbor might interpret your generous failure to complain about the fence as an agreement that this should be the boundary line between your two properties.

Therefore, in situations where your neighbor has an incorrectly placed a fence, the more prudent approach would be to send him or her a polite letter, by certified mail, asking that the fence be moved. Even if the neighbor does not move the fence, your letter will constitute proof that you do not agree with the neighbor’s view of the boundary line.

If you have questions about a boundary dispute or other real estate issue that may be headed to court, call Coeur d’Alene attorney Jim Bendell at (208) 215-2255.