Retroactively granting access

H

Henry W.

New Member
Jurisdiction
Missouri
First post here. If I find a neighbor encroaching on my rural property and believe it has been going on for a long time, would my retroactively granting permission be of any value in avoiding a possible adverse possession on the part of the neighbor? Thanks!
 
Henry W. said:
First post here. If I find a neighbor encroaching on my rural property and believe it has been going on for a long time, would my retroactively granting permission be of any value in avoiding a possible adverse possession on the part of the neighbor? Thanks!
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Adverse possession is not a black and white matter. You should speak with a local attorney who can review all of the facts related to your specific situation.
 
Zigner said:
Adverse possession is not a black and white matter. You should speak with a local attorney who can review all of the facts related to your specific situation.
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I asked the wrong question. Has anyone here heard of retroactively granting permission as a strategy to avoid adverse possesion?

Your reply could be used as boilerplate here for ANY question ... and would render the forum useless.
 
Henry W. said:
I asked the wrong question. Has anyone here heard of retroactively granting permission as a strategy to avoid adverse possesion?

Your reply could be used as boilerplate here for ANY question ... and would render the forum useless.
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There are some matters for which an internet forum can offer useful suggestions and information (colloquially referred to as "advice"). Unfortunately there are other matters that are complex enough that they are beyond the scope of an internet forum. Yours is the latter. Seek out local counsel.
 
PayrollHRGuy said:
If you are concerned that the neighbor may try for adverse possession you would be wise to tell them now, in writing, to stop trespassing on your property.
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That might be the opposite of what the OP wants to do. If the OP does that, it acknowledges that he has knowledge of the trespass and may (further) legitimize a claim of adverse possession.
 
Zigner said:
That might be the opposite of what the OP wants to do. If the OP does that, it acknowledges that he has knowledge of the trespass and may (further) legitimize a claim of adverse possession.
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Yes, the idea being to take "adverse" out of the picture and avoid starting the clock in the past.

Not trying to get any specific advice.

Just wanting to know if anyone has ever heard of granting retroactive permission as a hedge against an adverse possession action. Ever, anywhere. Or if it's inapplicable or stupid on its face.
 
"Ever, anywhere"? Really? What does your matter have to do with the law in The Gambia?

I know what you mean though...

With that said, your case is unique and should be reviewed by a professional who can offer advice tailored to your situation.

Best of luck to you.
 
Think this through logically:

Pretend you have a daughter. Your daughter asked you if she could have your car 5 years ago. You said no then, but now you want to give her the car. Can you give it to her 5 years ago? No.
 
Zigner said:
Think this through logically:

Pretend you have a daughter. Your daughter asked you if she could have your car 5 years ago. You said no then, but now you want to give her the car. Can you give it to her 5 years ago? No.
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She started using it five years ago. She never asked and I never said no. I didn't stop her nor put her on notice. I now give her retroactive permission. Not the same!
 
(1956) Open, continuous and uninterrupted user of real estate for statutory period creates presumption that user was adverse but the presumption disappears on appearance of some substantial evidence, however slight, that user was permissive. Bridle Trail Ass'n. v. O'Shanick (A.), 209 S.W.2d 401.

516.010
 
Henry W. said:
She started using it five years ago. She never asked and I never said no. I didn't stop her nor put her on notice. I now give her retroactive permission. Not the same!
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Right - you changed the parameters so that you could avoid using logic.

Ok, let's do this differently...

Let's say that your neighbor started using a portion of your property in the back-nine. You didn't know about it (but reasonably should have). It wasn't that he was hiding it, it's just that you never bothered checking. Now, how do you propose to go back in time and give permission when none was given in all that time?
 
PayrollHRGuy said:
(1956) Open, continuous and uninterrupted user of real estate for statutory period creates presumption that user was adverse but the presumption disappears on appearance of some substantial evidence, however slight, that user was permissive. Bridle Trail Ass'n. v. O'Shanick (A.), 209 S.W.2d 401.

516.010
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Right - and the OP's question by itself shows that the use was not permissive. If it was, he wouldn't have to "retroactively" give permission.
 
Zigner said:
Right - you changed the parameters so that you could avoid using logic.

Ok, let's do this differently...

Let's say that your neighbor started using a portion of your property in the back-nine. You didn't know about it (but reasonably should have). It wasn't that he was hiding it, it's just that you never bothered checking. Now, how do you propose to go back in time and give permission when none was given in all that time?
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Permission was implicit in absence of any attempt to remove him or his stuff. Made explicit by the retroactive written permission.
 
Henry W. said:
Permission was implicit in absence of any attempt to remove him or his stuff. Made explicit by the retroactive written permission.
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Ahhh...no. Permission was absent the entire time, as you already stated. I wouldn't recommend that you lie to the court if it comes to that.
 
Frankly, your best bet would be to speak to an attorney who can advise you based on knowledge of the specific facts of the matter.

Really.

Good day.
 
Henry W. said:
First post here. If I find a neighbor encroaching on my rural property and believe it has been going on for a long time, would my retroactively granting permission be of any value in avoiding a possible adverse possession on the part of the neighbor? Thanks!
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There is no such thing as retroactive permission. The SOL for adverse permission in Missouri is 10 years. So if the neighbor has already used your property continuously for 10 years openly and adverse to your ownership, he/she has already met the requirements to file a claim. But if not 10 years, you giving permission now stops the clock.
 
Why not just put a stop to it, Henry, rather than sitting on your thumbs trying to dream up gimmicks that aren't likely to work.?

Even if it's more than ten years, adverse possession has a variety of complicated requirement that may be overcome.

The following is general information from a MO attorney's website. Probably the same information that you'll find just be googling Missouri adverse possession.

Adverse possession allows someone to obtain title to land merely by possessing the land under certain conditions.

Adverse possession can occur under any number of circumstances. People have gained title by adverse possession by farming the land, clearing timber, erecting fence lines, keeping livestock on the land, constructing roads, mowing the grass, or making any number of improvements to the land.

Missouri courts consider many factors in deciding adverse possession cases. No hard and fast rule can be applied, and each case must be decided on its own unique facts. Nonetheless, in order to win a case of adverse possession, the claimant must prove each of the following five elements.

ACTUAL POSSESSION
A person claiming adverse possession must show an ability to control the land and his or her intent to exclude others from such control. This requires some continual act of occupying, clearing, cultivating, pasturing, erecting fences or other improvements. One or more of these acts can show actual possession of the land. Additionally, the claimant does not necessarily need to possess all of the land that he or she is seeking by adverse possession. However, the claimant must describe the claimed land sufficiently so that its precise boundary lines can be determined.

HOSTILE
The claimant's actual possession of the land must be hostile toward the owner's rights in the land. This does not mean that the claimant's conduct must be antagonistic toward the owner. Rather, the actual possession by the claimant must simply demonstrate an intent to possess the land as his or her own. The intent must be unequivocal. However, the claimant does not need to show that the owner knew of the claimant's possession of the land.

OPEN AND NOTORIOUS
The actual possession of the land by the claimant must be open and notorious. This simply means that the possession must be widely recognized and commonly known. So, although the owner does not need to know of the adverse possession, the possession must give the owner reason to know of it. This requirement is met if the owner had knowledge of the possession. However, if the owner did not know of the possession, then the claimant must show that his or her possession was obvious. The owner will then be presumed to have known of the possession.

EXCLUSIVITY
The claimant must show that he or she possessed the land for his or her own use. A claimant may not adversely possess land for the use of someone else. However, two or more persons may claim to adversely possess a property if they alone jointly possessed the property. Also, the claimant may tack on the adverse possession of another person. For example, if the claimant acquires an interest from someone who adversely possessed the property, then the claimant could count that time toward his or her own possession. Thus, such prior adverse possession can count toward the ten-year requirement described next.

CONTINUOUS
Finally, the claimant must prove that he or she continuously occupied the land for at least ten years. Temporarily leaving the property without an intention of abandoning it will not necessarily cause a gap in the continuous possession by the claimant. However, periodic intervals of possession may cause such gap. What constitutes a gap in possession depends on the circumstances. For example, a flooding of the land that renders it unusable for an extended time may not create a gap in possession.

ADVERSE POSSESSION TAKE-AWAY
Every piece of land is unique. As such, each case of adverse possession must be determined in light of its own unique circumstances. For example, facts supporting a finding of adverse possession in a highly populated area may not support such finding in a sparsely populated area. Property owners who ignore someone else's use of their land risk losing it by adverse possession.

It would help to know how your neighbor is encroaching and how long it's been.
 
OldSurveyor said:
The answer to the OP's question is No.

If it was possible to retroactively grant permissive use, every AP claim could be defeated thereby.
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No, because in many cases the owner of record communicated some kind of objection one way or another but fell short of suing the other party, so they didn't stop the clock.
 

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