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Encroachments by way of mowing, dumping and abandoned equipment and brush and landscaping debris piles are on the rise. While such actions may not meet the statutory test for an adverse possession claim, the land trust still must foot the bill to disprove a lawsuit claiming such. Identify the encroachment during pre-acquisition due diligence and resolve the encroachment before entering the chain of title! This is another great reason to have a formal practice of including stewardship review and comment on all acquisition transactions in the design and drafting phases with a full boundary investigation and documentation.
Consider these proactive prevention steps. Boundaries abutting high-use areas used by neighbors or frequented by the public are where many problems occur and boundary lines in those areas should be identified. Taking simple steps early prevents far more serious problems from developing.
- Mark property boundaries, especially near human activity including homes, camps and forested properties to inform others of the land trust’s property or easement.
- Some creativity may be required to avoid resentment, anger or litigation with neighbors. Where placing signs or T stakes along the property line may not be well received, consider plantings of some kind to mark the line, or electronic means such as burying a cable that can be registered by monitors with equipment.
- You may well be able to devise other means that are not visually intrusive.
- See Practice Elements 9D, 11C and 11E, 12B and 12C for more information.
- Well-marked boundaries put third parties on notice and aid land stewards in finding the boundaries resulting in earlier detection of trespass, encroachments and other boundary disputes. Early detection minimizes the cost, time and stress associated with boundary and trespass disputes.
- Document all encroachments as well as communications and correspondence with trespassers.
- Address all encroachments promptly, even nominal ones, and stop them.
- Consider purchasing insurance to cover the cost of damage or loss of the land trust’s property, as well as the value of the timber and any crops planted or stored on the property.
- Buy title insurance for all preserves and on all conservation easements. It costs less than a lawyer or mediator. You may need an approved survey to remove that exclusion.
- Consider appropriate remedies. Negotiation and mediation can lead to long-term solutions.
- Be prepared to litigate, if necessary, to protect land trust property rights and its standing.
- Have a legal defense fund and ongoing relationships with qualified lawyers. (Some neighbor disputes meet the threshold for small claims court, a much less costly and quicker process.)
- Remember timing counts under state statutes of limitations. Another reason to act immediately to resolve any trespass, encroachment or other possible issue.
- Understand exceptions, such as attractive nuisances and state Right to Farm acts.
- Develop written policies and procedures for resolving encroachments, access demands, adverse possession and other extinguishment claims by third parties.
- Regular annual monitoring of boundaries on preserves and easements.
- Compare surveys, plats and maps with on-the-ground findings and photos. Take note of where property boundaries are and any structures and activities (like mowing lines and debris piles) that are occurring near or on the boundary line. In one Terrafirma claim, a fence encroaching a couple of feet over the property boundary for 60 years went unnoticed by the land trust despite a survey showing the encroachment.
- Bring something to measure areas with distances restrictions or dimensional requirements. Terrafirma has seen violations of square footage limitations missed by staff who assumed the landowner’s measurements were correct. Land trust staff need to independently confirm measurement restrictions.
- Investigate any lease and license arrangements, including verbal agreements, to understand the arrangement’s duration, renewability, and the parties’ current understanding of the arrangement and agreement (or not) on the boundary line. A party may still be using the property even though the arrangement has ended, which may effectively renew the arrangement. Such continued use potentially opens the door to adverse possession challenges and could result in losing legal title or having to acquiesce to activities that may frustrate conservation purposes.
- Review tax and other maps of the abutting parcels for any landlocked parcels and document via owner affidavits the nonuse of the conservation land for access for any neighbor.
(From Conservation Defense Network Update's "Do sweat the small stuff" article, May 2026 ed.)
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Adverse possession is defined as continuously using land owned by someone else, as your own for a period of time, and then seeking ownership by court approval. While the law in each state varies, generally the land must be used exclusively by the trespasser without any objection from the owner of the land, where such use is open and adverse for a period of years.
One of the most effective ways to prove physical possession for an adverse possession claim is to fence off or otherwise enclose the land. If during your pre-acquisition due diligence you discover a neighbor encroaching on the property, especially with a fence, best practices dictate that the potential grantor resolve this title defect before you close on the transaction. If the encroachment occurs post-closing, document the encroachment and all communications with the trespasser. In the event you must litigate, such documentation is essential.
It always starts with something small. Fix the small stuff to prevent it from enlarging. If you have a known encroachment or trespass, even if it is nominal such as an annual leaf pile, stonewall pilfering, trail, artwork, playhouse, fence and such, please immediately file a Terrafirma claim and work with the neighbor to first agree on the boundary and then remove any encroachment.
- If an adverse possession claim results, consult a trial attorney immediately for next steps and inform Terrafirma.
- If the Terrafirma claim was not filed in a timely fashion, when the encroachment first started, there may not be coverage.
Act now. While minor encroachments may (emphasis on may) not be enough to prove adverse possession in most states (Alaska is one exception where even a minor encroachment can prove adverse possession), a minor encroachment can still be ample to file a complaint for adverse possession by the neighbor. The land trust will then incur expenses to defend the conserved land and the landowner will need to join in that defense. A common result is the land trust agrees to a license to continue the encroachment rather than fight the case to a successful conclusion. Please actively inspect boundaries and immediately address boundary issues as well as immediately file a Terrafirma claim. You might have to take physical steps to exclude the trespasser. Please note that any license granted must have strict limitations to ensure that the encroachment does not expand or result in an implied permanent easement, confer impermissible private benefit or create unnecessary risks of future disputes. Ask Terrafirma for examples to guide your attorney’s drafting.
You can lose it: Any encroachment with the requisite time and proof can strip the land trust of its ownership of land or of a conservation easement. Very few states prohibit adverse possession against land trusts. Connecticut is one and Rhode Island is another. Ask your lawyer what your state does.
Refresher: To qualify as adverse possession (and to get ownership of the property), the trespasser’s occupation of the land must be:
- Hostile (meaning without permission, the definition varies by state but if the use is by permission then it cannot be hostile)
- Actual (meaning physical occupation)
- Open and notorious (meaning the possession is obvious to onlookers)
- Exclusive (meaning that no one else shared possession) and
- Continuous for a certain period of time (meaning that possession is unbroken. This is factually determined including what causes the time period to start and stop. The time period that the trespasser must have occupied the land varies by state.)
All of these determinations are based on facts. Many states also have a wide variety of other documentary proof that is required. See this link for a state by state list of evidence required.
This easy to read state by state listing addresses what adverse possession means, the time you have to stop it, and the factors needed to prove it. This ABA Guide on state by state adverse possession laws provides a comparison among state laws.
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