Brief Introduction, History & Policy Rationale
It sounds like something that only occurs in property law textbooks: Neighbor A builds a fence, driveway, shed or otherwise possesses Neighbor B’s property, and Neighbor B, as the actual property owner, shrugs it off; what’s the big deal anyway, it’s their property right? Strangely enough, if Neighbor B ignores Neighbor A’s actions for long enough, Neighbor A might actually end up obtaining legal title to that portion of Neighbor B’s property. While it feels like a loophole, this is a real doctrine in property law called adverse possession that allows someone to claim ownership of property they do not hold title to if they meet specific requirements.
With roots tracing back centuries to old English common law, adverse possession remains alive and well in the American legal system today. The concept was created to settle property disputes in an era when land records were sparse and incomplete, and property often went unused and unproductive for substantial periods of time. Adverse possession ensured that disputes were resolved, thus providing clarity of ownership which allowed for land to be productive again. Today, it most often arises in boundary line disputes between neighbors after a survey reveals an encroachment. Each state has its own requirements for what constitutes adverse possession; this article will examine those requirements in Minnesota.
Minnesota Adverse Possession Elements
Adverse possession elements were developed by court decisions and opinions, rather than legislative statutes. Courts have been the driving force in their creation and continue to reshape their interpretation over time. With that in mind, in order to obtain title to property via adverse possession, the possessor’s use of the land must be: (1) actual entry that is open and notorious; (2) exclusive; (3) hostile; and (4) continuous. Often times one action by the adverse possessor will satisfy multiple elements. However, these elements may not be as clear as they seem at first blush and will be discussed in turn.
Actual, Open & Notorious Possession
There is no particular manner by which an adverse possessor must possess a disputed tract of property. However, the possession must give “unequivocal notice to the true owner that someone is in possession in hostility to his title.”[1] The [possessor] must not only possess the property, he or she must make that fact known by keeping their “flag flying.”[2] Minnesota has never required the possessor to put up “no trespassing” signs to satisfy this element, although such signs might signal that the adverse-possession requirement of openness of possession was satisfied.[3] In practice, this means that the possession must be reasonably discoverable by those in the area, not hidden in the back corner of a heavily wooded parcel of land.
Exclusive
Intent to take the land is not necessary; an individual can gain title by adverse possession “even though the [possessor] does not intend to take land not belonging to him so long as he does intend to exclude all others.”[4] The exclusivity requirement of adverse possession is satisfied if the [possessor] possesses “the land as if it were his own with the intention of using it to the exclusion of others.”[5]
Continuous
Possession must be continuous for the statutory period determined by the legislature. Statutory periods throughout the country range from five to thirty years. Minnesota Statutes (2024) §541.02 establishes a 15-year statutory period for adverse possession. So, does that mean that the adverse possessor must never leave the land for the entire fifteen years before they obtain title? Not exactly, that is where the court’s interpretation of what it means to be in “continuous possession” plays a factor.
Occasional and sporadic trespasses, do not satisfy the requirements of hostility and continuity, even where they continue throughout the statutory period.[6] A bright-line test for what constitutes continuous possession does not exist. Instead, the rule of thumb used is that the [possessor] must use the property as his or her own, i.e., regularly and matched to the land’s intended use.[7] Under this standard, a neighbor occasionally mowing a strip of your lawn likely wouldn’t qualify, but a sporadic use of a wooded area during hunting season may qualify. In a suburban context, the placement of a fence, septic system, and planting of shrubs and bulbs, were found to be consistent with those that owners of real estate would normally conduct on their own property.[8]
Hostile
The term hostility does not imply any type of “personal animosity or physical overt acts against the [actual] owner.”[9] Instead, hostility contemplates the entering and taking possession of the land as if it were their own, and with the intention of excluding all others.[10] The nature and circumstances of the possession must be such that the actual owner may be informed of it and that [they] may determine whether the acts consist of mere trespass or assertion of adverse title.[11] It is well-known that many thousands of homeowners have no boundary fences and that adjoining owners occasionally trespass on their neighbors’ lands in cutting grass, trimming hedges, and the like.[12] If that were the case, almost every neighbor would have an adverse possession claim against their neighbor, therefore the trespasser is required to show by some additional acts that the entry is hostile and under claim of right.[13] In one such case, the storing of lake equipment in the winter and the playing of children on the property were found not to be strong enough “additional acts” to establish title by adverse possession.[14]
Conclusion
Adverse possession may sound like an old legal trick, but it’s still very real in Minnesota. The idea is simple: if someone openly uses your land like it’s their own for fifteen years, the law may eventually grant them title to the property. Therefore, it’s important to know exactly where your property lines are. A survey before building a fence, shed, or driveway can save trouble down the road. It is also wise to occasionally walk your property, especially if you own vacant land, wooded acreage, or lakefront property that may attract casual use. If you’re comfortable with a neighbor using part of your property, be sure to put that permission in writing. A simple letter or agreement ensures their use can never be seen as “hostile” for adverse possession purposes. In short, the best defenses are awareness and communication. By knowing your boundaries and addressing issues early, you can keep your land secure. After all, if you snooze on your property rights for too long, the law just might let someone else move in.
Nicholas Mehlum is an attorney at Fryberger Law Firm.
The material in this article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.
Fryberger, Buchanan, Smith & Frederick P.A.
[1] Skala v. Lindbeck, 214 N.W. 271, 272 (1927).
[2] Romans v. Nadler, 14 N.W.2d 482, 485 (1944).
[3] Ganje v. Schuler, 659 N.W.2d 261, 269 (MN. Ct. App. 2003).
[4] Ehle v. Prosser, 197 N.W.2d 458, 462 (1972).
[5] Ebenhoh v. Hodgman, 642 N.W.2d 104, 108 (MN. Ct. App. 2002).
[6] Romans at 485.
[7] Ganje at 268.
[8] Ganje at 268.
[9] Ehle at 462.
[10] Ebenhoh at 110.
[11] Romans at 485.
[12] Romans at 485.
[13] Romans at 485.
[14] Stanard v. Urban, 453 N.W.2d 733, 736 (MN. Ct. App. 1990).
