The Journal of The DuPage County Bar Association

Back Issues > Vol. 21 (2008-09)

Defeating Adverse Possession Through Presumptions
By Raya D. Bogard

At some time during the recent history of your property, a neighbor may have landscaped a portion of your yard as his own. Maybe he built a new garage that, according to his perspective, only slightly went over the boundary line to encroach on your property. This kind neighbor may have decided that the grass really was greener on your side of the fence and took the liberty of moving his fence to enclose some of that lush grass you spent so many hours tending. Your kind neighbor insists these activities really are insignificant and will not affect your ownership…until he files an adverse possession claim against you.

In this day and age in which real estate markets fluctuate with the weather, now, more than ever, you need to protect what may be the last solid asset you have – your land. Allowing these types of minor encroachments on your land could add up to big trouble. Luckily, presumptions and approaches are in place to help you defeat the "hostile" or "adverse" element of adverse possession, and thus, the claim itself.

Adverse Possession. In an adverse possession action, the person seeking to establish title must show that possession of the claimed property was "(1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive…, and (5) under a claim of title inconsistent with that of the true owner."1 "Each element must have existed concurrently for the full 20-year [prescriptive] period before the doctrine shall apply."2 To satisfy the 20-year period, a claimant may "tack on" to any predecessors’ claims of possession.3 A presumption exists in favor of the record title holder.4 For a claimant to overcome the presumption, the claimant must prove each element of adverse possession by clear and unequivocal evidence.5 Some courts have even said that a claimant must have strict proof, which cannot be inferred or implied.6

While most lay people believe that mere presence on the property is enough to establish title by adverse possession, that is simply not the law. By interrupting the running of the 20-year time clock on any one of the five elements, you can succeed against any adverse possession claim. Three little known presumptions can help do just that.

Actions Consistent with the Recognition of Superior Title. In Mann v. LaSalle National Bank, a 35–by-131.31 foot parcel located adjacent to the claimant’s property was in dispute.7 The claimants in the case were seeking to tack on to their predecessors’ interest to satisfy the 20-year prescriptive time period, saying that the predecessors had used and landscaped the property in question and had represented to the claimants that the property was theirs even though title for that parcel was not conveyed to the claimants.8 At trial, the defense provided evidence that the predecessors had sought a variance for the disputed parcel, representing that they were negotiating a purchase of the property.9

In its decision against the claimant, the Mann court specifically addressed the "hostile or adverse" element by saying that it "need not demonstrate any actual ill will, but merely an assertion of ownership incompatible with any other claim of right."10 The attempt to purchase the property over which the claimants later claimed ownership was seen by the appellate court as clear evidence of recognizing the defendants’ superior title in the disputed property.11

The Mann court discussed this in further detail by saying the claimants had argued against a variance sought by the defendants for reasons unrelated to ownership of the property.12 That point was strengthened when the court gave credence to the village government’s recognition of the defendants’ ownership of the disputed property and its ultimate approval of a variance.13 Presumably, this concept would include instances in which a claimant sought to gain an easement or license on the disputed property.

Finally, in Baumann v. Lawndale National Bank of Chicago, the claimant was seeking title to property upon which he had made extensive improvements, such as erecting fencing, lighting, installing a two-car gravel parking space, rerouting the septic field, and using it as an outdoor riding ring and for grazing his horses, despite never receiving permission to make any of these improvements.14 The appellate court held that, when tacking on to a predecessor’s claim of ownership in a property, evidence must be presented to show that the predecessor intended or attempted to transfer the disputed land.15 Failure by the predecessor to do so indicates that the predecessor recognized superior title to the property he used.16

Encroachment on Vacant and Unenclosed Land. Another way to attack and defeat the "hostile or adverse" element in an adverse possession claim is through the vacant land presumption. Under this presumption, any use or encroachment onto a piece of vacant and unenclosed land is presumed to be permissive.17 As long held by Illinois courts, "mere permission to use land cannot ripen into a prescriptive or adverse possessory right regardless of the time such permissive use is enjoyed."18

In Morris v. Humphrey, the land at issue was an uncultivated piece of farmland, while the disputed property in Mann involved a vacant lot that was adjacent to the property owned by the claimant.19 However, in Knauf v. Ryan, the appellate court distinguished between vacant, unenclosed property and disputed property that sits between two occupied parcels and contains fences and landscaping.20 This case involved a small strip of land, no more than eight feet wide, over which the claimants were claiming ownership.21 The appellate court in Knauf found that there was no presumption of permission with regard to the disputed property because of its location between two occupied parcels.22

Furthermore, the defendants in Knauf erected a fence at the edge of their property line, which excluded the disputed property, and showed no ownership over the disputed property.23 Additionally, there was a question as to the true property boundary that affected the presumption. Here, the appellate court stated that the claimants landscaped the property, maintained the property, and believed the property to be theirs.24 Thus, in fighting an adverse possession claim, using the vacant land presumption is useful so long as no boundary dispute exists and the property is unenclosed.

Family Member Pre-sumption. Some states have found that a presumption of permissive use exists between close family members of adjacent properties unless evidence is presented to the contrary.25 Other states have found that "in jurisdictions where an adverse claimant’s open and continuous use of disputed property creates a presumption of hostile use," the familial relationship can negate this presumption.26 As a result, the claimant must affirmatively present evidence that the use of the disputed land was, in fact, adverse.27 Still other states choose not to adopt a presumption but instead impose a higher burden of proof in establishing title under adverse possession.28 In cases that opt not to follow this thinking, the most prominent reason is that claimants would be required to provide more evidence than "similarly situated unrelated parties".29 These cases also cite that this approach requires the court to determine the state of mind of the claimant, when courts have previously determined that state of mind is not a factor in meeting the "hostile or adverse" element.30

While Illinois has neither adopted nor rejected this family relationship approach, it is in our state’s best interest to do so via one of the three aforementioned approaches. Again, with the real estate market in constant fluctuation, one finds that parcels of family land are often transferred to other family members. Some rural municipalities even provide incentives for transfers of land to family members. Also, as family businesses close, land may be divided among family members for other purposes. As a result, benefits for property owners may be gained statewide by adopting this presumption or higher burden of proof as the possible transferring scenarios encompass both urban and rural areas. Any additional evidence needed in an adverse possession between family members is minimal and no different than the evidence needed to overcome other presumptions adopted by the courts.

Conclusion. With today’s economy and real estate market in a constant state of change, protecting your land against adverse possession claims is crucial to retaining as much value in your land as possible. Rarely mentioned or used presumptions, such as the claimant’s recognition of superior title or the vacant land presumption, are approaches to defeat adverse possession claims. Adopting a family member presumption also would be a way in which Illinois courts could help landowners protect their valuable assets with little consequence. Using these approaches in an adverse possession case may well save square footage and potential value in your property.

1 Knauf v. Ryan, 338 Ill.App.3d 265, 269, 788 N.E.2d 805, 808 (2nd Dist. 2003).

2 Mann v. LaSalle National Bank, 205 Ill.App.3d 304, 308, 562 N.E.2d 1033, 1036 (1st Dist. 1990).

3 Id.

4 Knauf at 269.

5 Id.

6 Mann at 308; Morris v. Humphrey, 146 Ill.App.3d 612, 615, 496 N.E.2d 1209, 1211 (3rd Dist. 1986); Baumann v. Lawndale National Bank of Chicago, 45 Ill.App.3d 328, 332, 359 N.E.2d 1086, 1091 (2nd Dist. 1977).

7 Mann at 306.

8 Id at 307.

9 Id.

10 Id. at 309.

11 Id.

12 Id.

13 Id.

14 Baumann v. Lawndale National Bank of Chicago, 45 Ill.App.3d 328, 331-332, 359 N.E.2d 1086, 1091 (2nd Dist. 1977).

15 Id. at 333.

16 Id.

17 Mann at 309, citing Morris v. Humphrey, 146 Ill.App.3d 612, 496 N.E.2d 1209 (3rd Dist. 1986).

18 Morris at 615-616.

19 Id. at 613; Mann at 306.

20 Knauf at 269, 270.

21 Id. at 267.

22 Id.

23 Id. at 267.

24 Id. at 269.

25 68 Am. Jur. Proof of Facts 3d 239§11 (July 2008); see Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947); Norgong v. Whitehead, 225 Minn. 379, 31 N.W.2d 267 (1948); Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

26 68 Am. Jur. Proof of Facts 3d 239§11 (July 2008).

27 Id.

28 See Kelly v. Mullin, 159 Colo. 573, 413 P.2d 186 (1966).

29 68 Am. Jur. Proof of Facts 3d 239§11 (July 2008); see Totman v. Malloy, 431 Mass. 143, 725 N.E.2d 1045 (2000).

30 68 Am. Jur. Proof of Facts 3d 239§11 (July 2008).

Raya Bogard is an associate with the law firm of Momkus McCluskey, LLC, concentrating in business transactions and planning, corporate law, and real estate.  She received her Bachelor’s Degree, magna cum laude, from Illinois College and her Juris Doctor, magna cum laude, from The John Marshall Law School.

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