Boundary Line Dispute: There are many situations that lead a property owner to seek the advice of an attorney knowledgeable in Real Estate Law.  Maine based Attorney Andrew Zulieve will be one of the presenters at the upcoming one day seminar –Boundary Law from Start to Finish. The event was  held in Portland, Maine on November 1, 2016, and sponsored by the (NBI) National Business Institute.  Attorney Zulieve discussed “Using Adverse Possession to Establish Boundary Lines.”

 

Adverse possession is another legal theory by which a person (actually a trespasser) [1] may acquire legal title by possessing all or some of the owner’s property, including a boundary, for a statutory period of time and under certain circumstances, described fully below.

In Hamlin v. Niedner,  955 A.2d 251, 255 (Me. 2008), the court emphasized that the Maine law “generally disfavors findings of adverse possession, and “ [t]here is every presumption that the occupancy is in subordination to the true title.” . . . [and] As a result, the party asserting adverse possession has the burden to prove all the necessary elements of adverse possession.

Adverse possession presents a mixed question of law and fact. (Striefel v. Charles-Keyt-Leaman Partnership, 733 A.2d 984, 989 (Me. 1999) – “[w]hat acts of dominion will result in creating title by adverse possession is a question of law . . . [w]hether those acts were really done, and the circumstances under which they were done, raise questions of facts.”

A person claiming title to another’s property or boundary by adverse possession must provide by a preponderance of the evidence that the possession of that property was (1) actual, (2) open, (3) visible, (4) notorious, (5) hostile, (6) under claim of right, (7) continuous, (8) exclusive, and (9) for a duration exceeding the twenty-year limitations period.  Weeks v. Krysla et al., 955 A.2d 234, 238 (Me. 2008).  In addition, “[t]he elements of adverse possession must be established by clear proof of acts and conduct sufficient to put a person of ordinary prudence, and particularly the true owner, on notice that the land is actually, visibly, and exclusively held by the claimant “in an antagonistic purpose” (Id.).

[1] The tort of trespass under Maine common law and statutory law (14 M.R.S.A. § 7551 et seq.)  is the intentional entry onto another person’s property . . . the minimum intent to commit a trespass is acting for the purpose of being on the land at issue, or knowing to a substantial certainty that this act will result in that person’s physical presence on the other person’s land . . . the intent is simply an intent to be at the place on the land where the trespass allegedly occurred . . . a person may trespass without intending to trespass (emph. add.) . . . it is necessary to keep in mind the distinction between the intention to do a wrongful act or commit a trespass and the intention to trespass.  (Darney v. Dragon Products Co., Dkt. #08-cv-47-PS (D. Me) (citations om.).

 

 

Boundary disputes including inaccurate property descriptions, encroachment problems and easement concerns.  Zulieve will walk attendees through strategies and techniques to handle the most common problems in property line disputes; such as: Examining use of Rural v. Urban Considerations. Here are a few items that are typically covered to address a boundary line issue:

  • Methods to clarify undefined and unmarked boundary lines.
  • What elements missing in stock boundary line agreements?
  • How to investigate the plaintiff’s claims.
  • Take a surveyor’s viewpoint when reading and interpreting surveys.
  • Does you  claim qualify for adverse possession –  or is a “neighborly accommodation.”
  • Uncover conflicting easement descriptions in surveys and title reports.

 

Zulieve has over 25 years of experience focusing his practice on real estate law, business, construction, contract negotiations, intellectual property and e-commerce law. He serves his clients both nationally and internationally. He can be reached by calling 207-790-2185 or by email: andy@zulievelaw.com