DBTC Law Firm

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.

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