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Did You Sign Away Your Right To A Jury Trial? Maybe Not.

“The right of trial by jury shall remain inviolate . . . .” Ark. Const. Article 2, §7. The right to a jury trial is a part of our State Constitution, but that right has always been subject to certain limitations. Now, as a result of a recent Arkansas Supreme Court decision, a long-recognized barrier to jury trials – the contractual waiver – has been removed.

In a 4-3 decision, the Arkansas Supreme Court recently held that a predispute jury waiver provision is unenforceable under the Arkansas Constitution. Tilley v. Malvern National Bank, 2017 Ark. 343, 532 S.W.3d 570 (2017). The Tilley case arose out of a foreclosure action filed by Malvern National Bank against Kenneth Tilley. Tilley entered into a loan agreement with the Bank and signed a promissory note in the amount of $221,000, secured by a mortgage on his property. The loan agreement contained a jury waiver clause. After Tilley defaulted on the loan, the Bank sued to foreclose the mortgage. Tilley answered and asked for a jury trial. He also filed a counterclaim against the Bank, alleging that the Bank breached an agreement to loan him additional funds and that the Bank’s failure to loan him the additional money caused him to default on his note.

The Bank moved to strike Tilley’s jury trial demand. The circuit court granted the motion and proceeded with a bench (non-jury) trial, following which the court ruled in favor of the Bank on its foreclosure claim and against Tilley on his counterclaim. Tilley appealed. The Bank first argued that under the “clean-up doctrine”, a court of equity may also decide any legal issues in a case. However, the Tilley court clarified that, due to the passage of Amendment 80 to the Arkansas Constitution, which merged courts of law and equity, the clean-up doctrine has been abolished in Arkansas. Now, a court must look at the remedies sought by a party to decide whether the party’s claim should be decided by a judge as an equitable matter or by a jury as a legal matter.

After deciding that Tilley’s various claims against the Bank, including breach of contract and negligence, are historically legal claims that carry the right to a jury trial, the court next examined whether Tilley waived his right to a jury trial when he signed the loan agreement with the Bank. The loan documents contained a jury waiver clause stating that each party “expressly waives any right to trial by jury of any claim . . . arising under this Agreement or . . . in any way connected with or incidental to the dealings of the parties . . . .” However, siding with Tilley, the Supreme Court held that a predispute contractual jury waiver is unenforceable under the Arkansas Constitution. Even though Article 2, §7 of the Arkansas Constitution states that “a jury trial may be waived by the parties in all cases in the manner prescribed by law”, the Supreme Court interpreted this language to mean that, unless an Arkansas statute or court rule provides otherwise (as in the case of arbitration agreements, which are governed by the Arkansas Arbitration Act), a jury trial waiver “may take place only after a jury demand has been made” and, thus “a jury trial cannot be waived before litigation begins.”

Three justices dissented from the Court’s opinion. In a dissenting opinion which was joined by Justice Womack, Justice Wood opined that the majority interpreted our Constitution too narrowly and that under the common law of this State, a prelitigation contractual jury trial waiver is permissible, as long as it is entered into knowingly and voluntarily.

Clearly, the implications of the Tilley decision are far-reaching. Not just banks, but businesses of all kinds, from landlords to automobile dealers, typically include jury waiver provisions in their contracts. Under Tilley, those waivers are now invalid and one who wishes to try his or her legal claims to a jury, rather than to a judge, will be free to do so.

Let’s Be Civil. Joint Custody of Your Child Depends On It.

Arkansas law favors joint custody of children following a divorce. But if mom and dad cannot cooperate and communicate with each other, a joint custody arrangement will not be tolerated by our courts.

Civility, or a lack thereof – we’re used to hearing about the issue in the political arena. But, as the Arkansas Court of Appeals made clear in Hewett v. Hewett, 2018 Ark. App. 235 (April 4, 2018), it is a vitally important concept in the realm of family law, as well. In the Hewett case, Kelly and Angie Hewett were divorced in 2012, at which time custody of the couple’s five year old son was awarded to Angie. The parties had difficulty communicating after the divorce and continually argued, with each repeatedly taking the other to court. In 2016, reciting a litany of complaints about Angie’s behavior, Kelly filed a motion to modify custody. The circuit court found that there had been a material change of circumstances warranting a change of custody and found that it was in the child’s best interest to award joint custody. Under Arkansans law, joint custody means both parents individually are entitled to an approximate and reasonable equal division of time with the child. Ark. Code Ann. §9-13-101(a)(5).

Angie appealed to the Court of Appeals, which reversed the circuit court’s decision. The appellate court noted that it is a long-standing rule that the primary consideration in child custody cases is the welfare and best interest of the child. It also stated that to change custody, the court must determine that a material change in circumstances has transpired. The court then found that the only circumstances mentioned by the circuit court was the parties inability to get along or communicate civilly with each other. However, the Court of Appeals determined that nothing about the Hewetts’ “bickering and name-calling was new or had significantly worsened.” Citing its holding in Li v. Ding, 2017 Ark. App. 244 (April 19, 2017), the Court of Appeals held that while an award of joint custody is favored in Arkansas, as stated in Ark. Code Ann. §9-13-101(a)(1)(A)(iii), “the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is reversible error when cooperation between the parties is lacking.” Applying this principle to the Hewetts’ case, the Court of Appeals found that the circuit court’s award of joint custody was based on the parents’ inability to cooperate and communicate and, therefore, joint custody was inappropriate. Primary custody was restored to Angie.

We could all stand to see a little more civility in this world. But for divorcing couples seeking joint custody of their children, the Arkansas Court of Appeals has made it clear that this issue could not be more important.

Don’t Like That VRBO Vacation Rental Next Door? Read Your Covenants Before You Complain!

Vacation travel isn’t just about hotel rooms anymore. VRBO.com and Airbnb.com are often the first places people look for lodging when traveling out of town. But what if it is the house next door to yours that is suddenly on the short-term rental market? Before you complain, you need to read your subdivision’s covenants.

There are probably few of us who haven’t used, or at least heard of, vacation rental websites like VRBO.com and Airbnb.com, which connect travelers to short-term rental properties in communities across the country and the world. Many folks would much prefer renting a private home rather than a block of hotel rooms for their family reunion, Razorback football weekend or bachelor party. But what do the neighbors think?

A group of neighbors in Hot Springs was unhappy enough to file a lawsuit when the owners of a 5,000 square foot house on a 6.07 acre lot near Lake Hamilton listed their property on VRBO.com. The neighbors claimed that putting the house on the rental market violated the subdivision’s bill of assurance, or covenants, which stated that none of the lots shall be used “for other than residence purposes” and, further, that none of the lots shall be used “for any commercial purpose, including motels, tourist courts, motor hotels, hotels, garage apartments, apartments, etc.” The circuit court agreed with the neighbors and granted an injunction against the owners, prohibiting the rentals. However, the Arkansas Supreme Court reversed the lower court and ruled for the homeowners, finding that the covenants did not specifically prohibit rentals. Vera Lee Angel Revocable Trust v. Jim O’Bryant & Kay O’Bryant Joint Revocable Trust, 2018 Ark. 38 (February 8, 2018).

In reaching its decision, the Supreme Court began by noting that Arkansas law does not favor restrictions on land and, thus, any restrictive covenants against limitations on the free use of land must be strictly construed. The court found that renting the property did not change the essential character of the house as a “residence.” As for whether the short-term rental of the property violated the restriction against using the property for commercial purposes, the court said that the examples of commercial uses set out in the bill of assurances were different from the use of the property as a single-family dwelling and that the receipt of rental income did not “transform the character” of the surrounding subdivision. Relying on case law from Virginia, Maryland and Alabama, the Arkansas Supreme Court found that while the covenants prohibit the property from being used for any “commercial purposes”, they are silent with regard to rental of the property. Therefore, consistent with the principle that such covenants must be strictly construed in favor of the unfettered use of property, the court concluded that the lack of a specific restriction against rentals of the property compelled a ruling in favor of the landowners.

So, whether you are considering buying a house or thinking about putting your house on the vacation rental market, be sure, first, to read very carefully any applicable subdivision covenants. As for developers and attorneys tasked with drafting such covenants, remember that any use which is not specifically prohibited in the covenants will, in all likelihood, be allowed.

It is Good to be King: No, You Cannot Sue the State!

In battles between the proverbial David and Goliath, sometimes the giant wins. That is often the case when it comes to wrongful acts committed by the State of Arkansas, as the state is protected by sovereign immunity.

The doctrine of sovereign immunity generally prevents a state from being civilly liable for its wrongdoing. A principle that has its origins in the power of monarchies to establish courts of law, the concept of sovereign immunity is exemplified in the maxim rex non protest peccare (“the king can do no wrong”). This principle is included in the Arkansas Constitution in Article 5, Section 20, which provides that “the State of Arkansas shall never be made defendant in any courts.” However, the Arkansas Supreme Court has previously held, over many years and in many cases, that the Arkansas General Assembly can waive sovereign immunity. As a result, there are Arkansas statutes that explicitly include such a limited waiver. Thus, Arkansas has been sued successfully many times over many years, under the Freedom of Information Act, Worker’s Compensation laws, for land condemnation damages, and under a myriad other statutory waivers, including the Arkansas Minimum Wage Act which includes a specific waiver of sovereign immunity with respect to minimum wage claims by state employees against Arkansas.

Given this established precedent, it is surprising that the Arkansas Supreme Court recently overturned that precedent and held that the Arkansas General Assembly does not have the authority to waive sovereign immunity. In Bd. of Trs of the Univ. of Ark. v. Andrews, 2018 Ark. 12 (2018), the majority of the Arkansas Supreme Court held that the statutory waiver of sovereign immunity for Minimum Wage Act violations is invalid, because it is “repugnant to article 5, section 20 of the Arkansas Constitution.” In support of its ruling, the Arkansas Supreme Court noted that in contrast to the earlier 1868 Arkansas Constitution, which specifically allowed for waiver of sovereign immunity, the current Arkansas Constitution was ratified without that language and instead clarified that the State of Arkansas is “never” to be made a defendant. Due to its ruling in Andrews, the Arkansas Supreme Court has now established that the Arkansas General Assembly is prohibited from waiving sovereign immunity and subjecting the State of Arkansas to civil liability in court.

While the State of Arkansas is not subject to being sued in Court, the Arkansas General Assembly has established the Arkansas Claims Commission to consider the claims of aggrieved parties that have been harmed/damaged by the wrongdoing of the State of Arkansas. This method of redress has previously been approved by the Arkansas Supreme Court and was once again recognized as a viable option in the Andrews case. However, unlike in a court of law, where a party is entitled to due process and an unbiased judge/jury, a claimant before the Arkansas Claims Commission is at the mercy of the Arkansas General Assembly, which has the sole right to determine whether any funds should be paid to reimburse the claimant for his/her damages.

This decision has thrown into huge uncertainty the long-standing presumption of lawyers and claimants throughout Arkansas that the courts provide effective legal redress for wrongs inflicted upon them by the state. It is good to be king!

 

The Love Boat: Arkansas Even Recognizes River Boat Marriages that Take Place in Other States

Sometimes a marriage license is not “just a piece of paper” and can be quite significant. In the recent case of Stovall v. Preston, 2018 Ark. App. 64, the Arkansas Court of Appeals upheld the validity of the marriage of a couple that were married more than twenty-seven years earlier by a boat captain in Louisiana. This occurred despite the fact that the marriage did not satisfy the technical requirements of Arkansas’s marriage comity law. Even with the apparent legal deficiencies, the Arkansas Court of Appeals declared the marriage to be valid in Arkansas because the couple had a copy of the Marriage License that was issued by the State of Louisiana.

Most states, including Arkansas, have statutes that determine the validity of marriages that occurred outside of the boundaries of the state. These laws are intended to extend comity (legal recognition) to foreign marriages, so as to avoid situations in which a person would be considered legally married in one state, but classified as unmarried in another state. Arkansas’s statute addressing this issue, allows for recognition of marriages “contracted outside of this state that would be valid by the laws of the state or country in which the marriages were consummated and in which the parties then actually resided . . .” Ark. Code Ann. §9-11-107 (a). This protection was previously restricted by Ark. Code Ann. §9-11-107 (b) to only allow for comity with respect to marriages between opposite sex couples, but that portion of the statute was later held to be unconstitutional. As a result, under the language of the statute, marriages between any couples married in accordance with the laws of other states would be recognized in Arkansas so long as the individuals consummated the marriage in the state in which the marriage was originally contracted and “actually resided” in that state.

In Stovall, the son of an 83-year-old woman challenged the validity of his mother’s twenty-seven-year marriage as part of a guardianship proceeding. His mother and her husband had been married by a boat captain in Louisiana. Although the couple had obtained a valid Louisiana Marriage License, they had not “actually resided” in Louisiana in the manner described in Ark. Code Ann. §9-11-107 (a). In addition, the son alleged that there was no evidence that the couple consummated the marriage following the marriage ceremony. The son argued that his mother and step-father’s undisputed failure to reside in Louisiana rendered their marriage invalid.

Evaluating the merits of this claim, the Arkansas Court of Appeals acknowledged the “longstanding presumption that a marriage entered in due form is valid, and the burden of proving a marriage is invalid is upon the party attacking its validity.” The Arkansas Court of Appeals also noted that past Arkansas cases had treated marriage license statutes as “directory, not mandatory.” Based upon those presumptions of interpretation, the Arkansas Court of Appeals determined that it would uphold the purpose of Ark. Code Ann. §9-11-107, which “is to recognize as valid marriages contracted outside of Arkansas that would be valid by the laws of the state or country in which the marriages were consummated.” Although the Arkansas statute required residency in Louisiana, the Arkansas Court of Appeals held that the Louisiana Marriage License was sufficient to prove a valid marriage was contracted in accordance with Louisiana law and would thus be recognized in Arkansas. Apparently, love conquers all!

Putting Lipstick on a Pig: Recess Versus Physical-Activity Periods

In 2012, when the Pulaski County Special School District (“PCSSD”) replaced paid monitors, who had been supervising the students’ recess, with certified teachers, some teachers vehemently protested the change. They argued that the school district’s actions violated existing Arkansas law that had been enacted to protect teachers from being burdened with wide-ranging duties that extend beyond their primary roles as instructors.

Under Arkansas law, school districts are prohibited from assigning teachers more than 60 minutes a week of “noninstructional duties.” Ark. Code Ann. §6-17-117. Pursuant to the statute, such “noninstructional duties” specifically include the supervision of students before and after the instructional day begins or ends for students. It also includes the general supervision of students during breakfast, lunch, scheduled breaks and recess. A separate Arkansas law, which was passed in 2007, mandates 90 minutes of physical activity per week for children in kindergarten through sixth grade. The 90-minute period can include recess in addition to “physical education instruction” by a certified teacher. Ark. Code Ann. §6-16-132.

Prior to the Fall of 2012, PCSSD utilized paid monitors to supervise students’ recess periods throughout the school day. However, in a purported effort to incorporate “physical education instruction” into the school day to comply with Ark. Code Ann. §6-16-132, PCSSD subsequently issued a new policy that reclassified recess periods as “physical-activity periods” and assigned certified teachers to supervise the periods instead of paid monitors. Despite the reclassification, PCSSD did not make any substantive changes to the activities that occurred during these periods and the teachers did not provide any formal instruction to the students. The only difference between recess periods and physical-activity periods was the presence of a certified teacher.

Teachers objected to this new assignment, arguing that it violated Ark. Code Ann. §6-17-117 and prevented them from utilizing that time to “grade papers, call parents, and plan and prepare for the next class.” In an effort to challenge the new policy, some of the teachers brought suit against PCSSD, asserting that the physical-activity periods, which required no actual instruction, constituted extra “noninstructional duties” that resulted in the teachers being improperly forced to exceed the 60-minute noninstructional duty limitation of Ark. Code Ann. §6-17-117. After evaluating the nature of the activities, the trial court concluded that the policy change violated Ark. Code Ann. §6-17-117. Upholding the trial court’s ruling, the Arkansas Court of Appeals noted that the activity “periods still met the common meaning and practice of the definition of ‘recess’ and hence were ‘noninstructional duties’ under section 6-17-117(b).” Pulaski County Special School District v. Lewis, 2017 Ark. App. 264 (2017).

In other words, recess is recess regardless of the label you put on it. Accordingly, in Arkansas a school district cannot alter its obligations to teachers and avoid statutory requirements by means of semantic gymnastics.

“Good condition” is not a reliable warranty; “right to return for purchase price” is.

One would think when purchasing anything from an automobile to an appliance to equipment, that the assurances of the seller that the item is in “good and reliable” condition would be an effective warranty protecting the buyer. It is not. Make sure you get a written promise to return it for your purchase price if not satisfied.

The Arkansas Court of Appeals decided on November 9, 2016, the case of Epley vs. Gibson Auto Sales, 2016 Ark. App. 540. In that case, Ms. Epley bought a car from a used car dealer, Mr. Gibson. Mr. Gibson admitted that he told her the car was in good condition. After trying to drive it and dealing with multiple problems and repairs for over a year, she returned the car, claiming a breach of its warranty that it was in good condition. Testifying in her behalf was the person who had traded the car to the dealership, who said he had advised Mr. Gibson that in the car’s 110,000 miles, it had a long history of repairs and damage and, in the owner’s opinion, the car should be scrapped and used for parts. None of this, of course, was shared with Ms. Epley who instead was told by the dealer that the car was in “good condition.”

The Court found the assurance that the car was in “good” condition was a subjective term subject to interpretation by individuals as to exactly what that meant, and thus not a firm warranty. It was in the realm of permissible “puffing,” rather than an objective guarantee. In so ruling, it is now the law in Arkansas that any assurance that something is in “good” condition is for all legal and practical purposes, a legally worthless assurance.

Fortunately, the Court found that an oral promise had also been made that the car could be returned for the purchase price if the buyer was dissatisfied, so the disappointed new owner was afforded relief. It is always a dangerous thing to rely on an oral promise; though oral promises are usually “legal,” they can be very difficult to prove with certainty. The moral of this story is, ignore any assurances that some used property you are buying is in “good” condition, and get the written assurance of the seller that if you are not satisfied for any reason, you can return it for your purchase price.

The “terror” of no-contest clauses

Clients, seeing or hearing of bitter and expensive legal disputes in other families over estates, concerned about their own family engaging in such disputes after their death, or both, often seek to avoid that by requesting their attorney insert “In terrorem” (Latin– “about fear”) or “non-contest” provisions in their wills or trusts. Simple in concept, these clauses rarely serve the intended purpose and, as a recent decision of the Arkansas Court of Appeals demonstrates, can cause, as well as resolve, probate litigation.

Such a clause in a will or trust may read, “any beneficiary challenging the validity or distribution of this will or trust shall be disinherited and take nothing.” Clients do not realize the various ways that estate litigation can, and sometimes should, arise: Has the executor or trustee who controls the estate after the death of the client actually stolen from or been negligent with the assets of the estate? Was grandma competent, or because of age, senility, poor judgment and ungrounded fears, actually incompetent or under substantial improper influence when she signed such a will or trust giving her entire estate to Hari Krishna? Is the language of the will or trust truly so ambiguous that how it should be distributed is completely uncertain? Families and next of kin feel strongly and morally justified to set such wrongs right, but barring the door is a “no-contest” clause!

In a recent decision, the Arkansas Court of Appeals refused the request of one son to enforce an in terrorem clause against his brother because neither son abided by their mother’s wishes or the terms of the trust. Scott v. Scott, 2016 Ark. App. 390. Our courts have also generally ruled that when a challenger of a will prevails on whatever claim they have, the no-contest clause is deemed inapplicable. So, has it really accomplished anything? One must also realize that the sanction of taking nothing from the will or trust has no validity if the purported beneficiary is given nothing in the first place: a prodigal child is given one dollar in the will, but faces the sanction of losing “everything” if he challenges the will– really what does he have to lose? To make this work against a beneficiary to whom the client may want to leave little, the client will have to leave that beneficiary enough that he risks a significant forfeit if he does challenge the will.

In summary, most if not all of the claims against a will or its administration that a “no-contest” clause may stop can nevertheless be asserted, may prevail, and perhaps should prevail. That is not to say in very carefully considered circumstances, a properly and carefully conceived and drawn no-contest clause could effectively and substantially diminish the possibility of spurious estate litigation, but such a clause is almost never the simple, “cut out the bad apple” result that clients would presume when using one.

Government got your money?!

Billions of dollars in assets have been confiscated, or “escheated,” from individuals and private businesses by state governments in the United States. This property is subject to being reclaimed by the original owners. In Arkansas alone, $220 million is still waiting to be claimed in the “Great Arkansas Treasure Hunt,” with $103 million having already been claimed since 1980. Could you have some cash waiting on you?

The assets held by the government are called “unclaimed property” and can come from a variety of sources. These include savings accounts, checking accounts, unpaid wages or commissions, stocks, dividends, proceeds, refunds, money orders, paid-up life insurance policies, utility deposits, and even the contents of safety deposit boxes, which can include items like jewelry, coins, baseball cards, or stamps, which, according to various standards, have not been accessed for some period of time by their owners. Abandoned property of this nature becomes unclaimed and is turned over to the state for a variety of reasons, which can include moving without providing new contact information, moving and failing to reclaim deposits, forgetting accounts that have been left open, failing to cash checks, neglecting to cash final paychecks from employers, or heirs not leaving contact information necessary to receive proceeds from decedents’ estates. Possibly the most important issue regarding unclaimed property is the fact that there are no statutes of limitation in place. Because of this, those entitled to unclaimed property that was escheated decades ago still have the ability to retrieve that property.

It is easy to find out if you or a family member have unclaimed property. The National Association for Unclaimed Property Administrators, or NAUPA, oversees unclaimed property. You can search its website, www.unclaimed.org, for free. Arkansans can also search for unclaimed property on the State Auditor’s website, http://auditor.ar.gov. Once on the site, simply type in your name to determine if you have unclaimed property. If you find your name, you can then initiate a claim that will be followed up on by the State. Legitimate proof has to be submitted in order for a claim to be validated, including proof of address and name at the time of the escheatment. Documents like tax returns or utility bills are great for providing this information.

Because of the ease of checking whether you have unclaimed property, it is well worth visiting one of these websites to see if you are lucky enough to have some unclaimed cash waiting for you. A woman from Kansas City, whose family invested in an obscure company many years ago, claimed $6.1 million in 2011. Maybe your fortune is waiting on you!

Property Owners Beware of “Squatter’s Rights” That Create Easements Across Your Property.

The lay term “squatter’s rights” is dignified in the law by the term “adverse possession.” In Arkansas, a person can establish legal rights to your real property if for a period of seven years he continuously uses it in a way that is obvious and adverse to the rights of the real owner, such as fencing it, farming it or building on it. Besides being a path to outright ownership which would deprive the title owner of his property, the doctrine of adverse possession can be used to establish easements across property: paths, roadways, drainages or rights-of-way for power lines. While often these circumstances occur to untended rural property, they can also arise literally in your front yard, as illustrated in the recent case of Bingham vs. C&L Electric Cooperative. If the use is “permissive” versus “adverse,” no ownership rights are obtained. Frequently, cases turn on whether the owner had granted permission for such use or whether it was really adverse and without permission. Owners, even in dense, urban areas, need to be specifically aware of their boundaries and control whether any use by third parties is indeed permissive, or might be adverse, causing them to lose property rights.

In the case of Bingham vs. C&L Electric Cooperative, 2015 Ark. App. 237, decided on April 15, 2015, Mr. Bingham lived in his home on 32 acres which had been in his family for over 50 years. Power lines which served his house and neighbors ran across his property. When the electrical company came in to substantially remove the trees under the line for safety reasons, Bingham objected to the cutting of trees on his property.

The Electric Cooperative asserted that they had maintained those lines for over 30 years, and had periodically trimmed the trees under them. There were no documents establishing any kind of easement in favor of the Electric Cooperative. Bingham claimed that the use was permissive–he and his family had allowed the Electric Cooperative to maintain the lines in order to get service to their house and to accommodate their neighbors. The Electric Cooperative demonstrated that they had been trimming the trees on a regular basis for more than the seven years required for adverse possession.

The Court ruled that the power lines were visible, running across the front of Mr. Bingham’s property, and Mr. Bingham had no proof that he had ever granted permission or consent to the Electric Cooperative to place the lines there. The Court found that he acquiesced in the use of his land by his silence and passive assent, confirming the right of the Electric Cooperative to maintain both the lines and the ground beneath them as necessary.

A word to the wise: To the extent any part of an owner’s property is used by a third party for any purpose, the owner needs to have direct, clear and provable communications with that third party on a periodic basis that confirms that such use is voluntary and permissive and can be withdrawn at any time. This will defeat the doctrine of adverse possession coming into play after such use is continued for more than seven years. Placing a locked gate for a few days per year over a well-used roadway or path through properties, or periodic certified letters to an adjacent neighbor whose fence or garden may infringe an owner’s property confirming that permission is granted for the infringement, are illustrative of how an owner can protect his property rights to his titled real estate.