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land dispute

How Hostile Must I Be To Acquire Ownership By Adverse Possession?

To prove ownership of land by adverse possession, one must show possession of the disputed property continuously for seven years and that the possession has been actual, open, notorious, continuous, hostile and exclusive, and accompanied with an intent to hold the property against the true owner. However, a recent decision by the Arkansas Court of Appeals shows that the element of hostility is now viewed by an objective, rather than a subjective, standard, which should make it easier for one claiming ownership by adverse possession to prove his claim.

Garland Gilmore filed suit against Sean and Kim Collier to quiet title to a disputed strip of property. Both Gilmore and the Colliers acquired their respective titles from a common predecessor, Lyn and Myrtle Holder. Mr. Gilmore testified at the trial that when he purchased his property in 1972, he was told by Mr. Holder that he was buying all of the land up to a then-existing fence, which enclosed the property where Mr. Holder lived (and which the Colliers now own). The fence was later removed, but Mr. Gilmore actively farmed the disputed strip of land up to where the fence used to be for more than 40 years. The Colliers maintained that the descriptions in the deeds control and that the boundary line should conform to the deeds and not to Holder’s and Gilmore’s understanding of where the boundary line was located.

To establish ownership of property by adverse possession, one must show that he has had actual, open, notorious, continuous, hostile and exclusive possession of the disputed property for seven years, along with an intent to hold the property against the true owner. At the trial, Mr. Gilmore testified that he has always believed that the property he was farming belonged to him and that it was not his intention to “take” the property from anyone. The Colliers argued that this testimony showed that Mr. Gilmore’s use was not a hostile use, but was a permissive use. If one uses someone else’s property with permission, he cannot show the hostile intent necessary for adverse possession.

The Court of Appeals concluded that Gilmore’s act of farming the disputed tract for decades was enough to “establish an intent to hold against, and not in subordination to, the true owner’s rights.” The fact that Gilmore subjectively believed he was farming up to the true property line – which would seemingly eliminate the element of hostility – was deemed unimportant. Instead, the Court focused on Gilmore’s objective behavior. Applying an objective, rather than a subjective, view of intent, the Court found that Gilmore’s possession was “hostile” because “it was to an extent greater than the deed anticipated; and his conduct was not subordinate to Holder’s property interests or done with Holder’s permission.” Collier v. Gilmore, 2018 Ark. App. 549 (November 14, 2018).

This case signals Arkansas’s shift towards what the Court of Appeals described as the “trending” majority view that in adverse possession cases, the element of hostility will be determined by the parties’ behaviors and not by inquiring into a claimant’s subjective intent. So, even if you only intended to possess up to the true property line, if you actually possess property beyond that line and can establish the other necessary elements, your adverse possession claim should succeed. This new interpretation of the law also puts a heavy obligation on all landowners to know where their legal boundaries lie and to enforce those against a neighbor’s apparently non-hostile use. In other words, if your neighbor is mowing, gardening, playing on or otherwise using property inside your boundary, even though only smiling quietly at you as he does it, he is maturing his claim to your property.