Normally a change in the ownership of land is accomplished by signing a deed. However, an owner of real estate can lose some or all of his property by a process called Adverse Possession. This occurs when another person exercises dominion and control over the land, without protest from the true landowner, and this dominion and control lasts more than five years. A case which illustrates the Adverse Possession doctrine in Idaho is found in the Idaho Supreme Court’s ruling in Lindgren vs. Martin, 130 Idaho 854 (1997).
The Lindgrens had purchased a tract of land in Boundary County. On the land was a fence, which the Lindgrens treated as the western boundary of their property. In 1971, the Martins’ attorney wrote a letter to the Lindgrens, stating that the fence was actually located on the Martins’ property, and requested that the Lindgrens not occupy that property. The Lindgrens did not move the fence or make any other changes in response to the letter.
In 1993, The Lindgrens filed a lawsuit asking the court to declare that they were now the true owners of the property in dispute, based on the doctrine of Adverse Possession. The court ruled in favor of the Lindgrens. In its ruling, the Idaho Supreme Court explained the Idaho law concerning Adverse Possession:
“For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment or decree, land is deemed to have been possessed and occupied in the following cases only:
1. Where it has been protected by a substantial inclosure.
2. Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be considered established under the provisions of any sections of this code unless it shall be shown that the land has been occupied and claimed for a period of five (5) years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county or municipal, which have been levied and assessed upon such land according to law.
The burden of showing all of the essential elements of adverse possession is upon the party seeking title thereunder and every element of adverse possession must be proved with clear and satisfactory evidence……. The requirements of inclosure and improvement found in I.C. § 5-210 are written in the disjunctive, and it is sufficient to show either a substantial inclosure or cultivation or improvement. “
Based on these standards, the Supreme Court upheld the lower court’s ruling that the Lindgrens had obtained the Martins’ land through Adverse Possession.
This case makes it clear that an owner of real estate risks losing some of his property to a neighbor through inaction. If you believe that a neighbor has placed a fence on your property, or is making some other use of land belonging to you, you should consult with a real estate attorney with extensive litigation experience to assure that your rights are protected.