Jones bought a home 5 years ago next to Smith which has a stockade fence set back 2 to 3 feet from the property line. Smith has been in his home 25 years. Jones is aware that the fence could be pushed out further and recently told Smith that he is thinking of putting in a pool and would want to push the fence out further at that point. Smith is not happy as he plants tomatoes or such along the fence.

Jones doesn't know how long the fence has been up. (It occurs to me that not having a fence up to your property line can expose you to such problems) Smith reluctantly moves his plants and Jones has a contractor come in to start the pool. Jones notices a property pipe marker has been moved as compared to pictures he took when he moved in. Days later, Smith quietly visits the building department complaining that the pool is too close to the property line. The building department comes out, inspects, and tells the contractor the setback is fine (even with the moved marker).

The pool is now complete except for walkway and landscaping and it's time to move the fence out. Jones is having the surveyor come out once again to verify the marker placement before the fence contractor puts the new fence up and takes down the old. Smith is now bringing up the possibility of "adverse possession" with Jones. Since he could not stop the pool, it appears he want to limit the space between the pool and the fence apparently just to be difficult.

Even though Smith has been there for 25 years, he has not made any adverse possession claim. One question is, since Jones said Smith could leave his garden until he decides on moving forward with the pool, does that have the effect of stopping an adverse possession or does a previous 20-plus years usage of the property before Jones allow a claim to be made now regardless of the recent permission? Note that this is a question aside from whether Smith's usage of the strip of land is actually provable.

  • jurisdiction matters because length, "notorious occupation", paying the property tax can pay a role. If Smith had been granted permission to use the land by the previous owner than it's usually not adverse.
    – mkennedy
    Nov 1, 2023 at 20:56

1 Answer 1


Smith has waived any right to adverse possession

“Smith reluctantly moves his plants”. By doing this, Smith has acknowledged Jones’ superior title claim to the land. As such, he cannot now argue adverse possession - he needed to make that claim when Jones asked for the land back.

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