Posted by: Archipelago Law in Land Use, Prescriptive Rights, Property Law on September 16, 2022
What if I told you the Maine legislature has enacted a simple process to ensure you could protect your land from adverse possession claims by others, even if only for preventive purposes. Picture this, your neighbor builds a barn and gravel driveway along your shared boundary line. You notice it looks awfully close to your property, but it does not interfere with the use of your land, so you say nothing. Fast forward 25 years. Your neighbors put their home on the market. They hire a surveying firm and come to find that their barn and access drive encroach on your land. Your once friendly neighbor files a claim in court for adverse possession and a prescriptive easement over your land.
In Maine, an abutting landowner can claim title to a portion of your property if they can prove the elements of adverse possession, also known as “squatter’s rights”, or the right to utilize a portion of your property by way of a prescriptive easement without obtaining ownership of the property. A party claiming title by adverse possession pursuant to the common law must prove by a preponderance of the evidence that its possession and use of the property were: (1) actual; (2) open; (3) visible; (4) notorious; (5) hostile; (6) under a claim of right; (7) continuous; (8) exclusive; and (9) of a duration exceeding the twenty-year limitations period. The requirements for obtaining a prescriptive easement are similar to those for obtaining title by adverse possession; however, can be established where the use is so open, notorious, visible, and uninterrupted that the knowledge and acquiescence will be presumed.
Your neighbors have openly and continually occupied your land with a portion of his barn for well over the 20-year statutory period. It will be fairly simple to prove the barn was in his possession and that they claimed sole ownership of the structure, as well as the fact that you knew that the barn was there. Additionally, your neighbor has utilized, plowed, and maintained the driveway in working condition for the same extent of time with your knowledge or, at the very least, your passive acquiescence to their use. It is likely that your neighbor will prevail on his claim of title to the land where his barn sits and that they have a prescriptive easement over the driveway. Your neighbor, and the future purchaser, now owns your land in the area of encroachment.This could have all been prevented when you initially thought the barn and driveway looked too close to your property.
Maine law provides a method to prevent adverse possession and prescriptive claims to your property by following a few modest steps. You can prevent the acquisition of property rights by posting a notice detailing your apprehension in a conspicuous place on the property for 6 consecutive days. This notice must be attested by an officer qualified to service civil process then recorded in the county’s Registry of Deeds within 3 months. This simple, relatively inexpensive, and preemptory process will prevent the acquisition of any rights by that specific prescriptive use for any length of time thereafter. The preventative measure is an extremely underutilized tool in Maine land use law and one that can save you from a significant financial and mental burden in the future.
Both novice and experienced landowners often find themselves in difficult situations due to their lack of knowledge of applicable real estate and land use law. Whenever you find yourself in a position where you think you may be at risk, it is best to seek the advice of a qualified land use attorney to help navigate the complexities of land ownership and understand your rights.
Michael J. Skolnick, Esq.
Archipelago Law, LLP