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5001 Seminary Road, Suite 110
Alexandria, VA 22311
Despite the conception that real property is a solid asset, it is not static. Land, itself, can be transformed by natural causes, and rights of access or ownership can change over time and circumstances.
When a parcel of land is neglected by the owner, another party may permanently gain ownership rights to that land in fee simple absolute (a type of ownership involving absolute, sole ownership with no encumbrances) and forever extinguish the previous owner’s rights to the land.
This is accomplished by adverse possession, the elements of which vary by state, but which share commonalities. Three basic elements are necessary for AP, consisting of a physical, mental, and timely nature.
One who takes ownership of land through AP must take actual physical possession of the land and use the land for its intended purpose. For example, a piece of farm land must be used for farming. Making improvements on the land in the form of a house or other buildings can establish the element of possession. This use and possession puts the current owner on notice that the land is being taken over by another. The owner need not have actual knowledge of the occupancy, but the trespasser must openly and notoriously possess the land so that a diligent owner should know.
The mental element to AP requires the one who takes over property to do so in hostile fashion. In other words, the party who enters the land and puts it to use must do so knowing that the land does not belong to him, but he occupies and uses it regardless. This type of entry is known as claim of right. The mental element can also be satisfied by color of title, in which the adverse possessor enters the land under the belief that he holds title to the land, but the belief is unfounded since the title is not valid.
Lastly, the possessor must satisfy the time element by continuously possessing and using the land for a period of time. In Virginia, the time element is satisfied in 15 years, after which the previous owner will have missed the statute of limitations in evicting the trespasser and the trespasser becomes the true owner.
An easement is the right of one party to use property owned by another, and at times, without the permission of the rightful owner. Usually, the use in question involves walking or driving over a path on the land. The term also refers to the path or the portion of land, itself, that is used by the non-owning parties. This path can become paved for use by vehicles.
Though several types of easements exist, and each can arise out of different circumstances, one type can stem from years of neglect in preventing trespassers, in a fashion similar to AP. An easement can be established by users of nearby land crossing over the property in question from a parcel of land that is accessible only by crossing over the easement, (a situation created by the severing of adjacent property that leave a divided portion without access to public roadways.) It can also be created by pedestrian trespassers, such as beach goers who walk a path over the property of a seaside house in order to get to the public beach. If the pedestrians are not prevented from walking the path for a sufficient number of years, the path can become a public easement on which the property owner has no right to evict.
Get Legal Representation
If you or a loved one inherited a parcel of land that is either being trespassed upon or does not fit the description of the land in the deed willed, you need an experienced lawyer to determine if your rights to the land are being usurped. Contact the attorneys at The Kamerow Law Firm, PLLC for a free and confidential consultation by calling 703-370-8088.