The Wyoming Supreme Court does not often take up adverse possession in Wyoming, partly because it is a very specific claim with a list of elements that must be proven. Once in a while though, there are circumstances that are definitive of adverse possession, and that's what we will unpack in this article.
When does adverse possession apply regarding real property in Wyoming?
In this January 2021 Wyoming Supreme Court case at 2021 WY 5, Mr. V. bought his residence in 1999. Mrs. W. purchased her property next door in 2005. The north wall of Mr. V's home is on the south border of Mrs. W's property. Mr. V's building has 7 window wells which extend about 16 inches onto Mrs. W's property. Mr. V. had surveyed his property in 2002 and discovered that the window wells encroached on the property to the north but did not reveal the location of the property lines to his neighbor or seek permission for or alter his use of the window wells. There are affidavits in the court record that show that the window wells were present on the property since at least 1967.
What prompted a claim of adverse possession and what does that mean?
When a land owner claims adverse possession, it means that the land owner is saying: "I have been using this property for so long without objection from you that it belongs to me now". In this case, these two neighbors' relationship was cordial until August of 2018 when Mr. V sent Mrs. W a letter explaining that her sprinklers were causing damage to his home by spraying water directly onto his windows and walls and asking her to water by hand in that area. Mrs. W. sent Mr. V a letter back warning him if he did not remove the window wells she would hire someone to do so. The district court found that there was no dispute the window wells had existed since at least 1967 and Mr. V had met his burden of showing he and his predecessors possessed them and used them openly, notoriously, exclusively, hostilely and under a claim of right from 1995 to 2005.
Why is this claim not granted very often in Wyoming?
Adverse possession claims are disfavored because there is a presumption in favor of the record title holder, unless and until the adverse claimant makes out his case. The party requesting this claim must find that the possession of the property was actual, open, notorious, exclusive and continuous of another's property which is hostile and under claim of right or color of title, and must be for the statutory period of ten years. Once you make this claim, the burden shifts to the opponent to explain such possession. Then the question becomes one of weight and credibility to be determined by the trier of fact--the court.
How do you show "actual possession"?
No particular act is required to establish actual possession; rather, the acts required depend on the character of the land and the use that can reasonably be made of it. In this case, Mr. V demonstrates actual possession by the existence of the window wells. He submitted numerous affidavits from himself and four others to prove that they existed from 1967 to the present.
How do you show "open and notorious"?
The acts of dominion over land claimed to be adversely possessed must be so open and notorious as to put an ordinarily prudent owner on notice that the land is being used by another as his property. The kind of act necessary to give notice depends on the type of land in dispute. Such acts include, but are not limited to, erecting buildings on the land, planting vegetation, maintaining and improving the property, watering and mowing, and using the land for family gatherings. Here, a window well that extends over the property line is part of a building on another's land. Mr. V's window wells were open and notorious, and the owners of Mrs. W's property were put on notice of Mr. V's continuing act of dominion.
How do you show "exclusive possession"?
Exclusive possession requires the showing of exclusive dominion over the disputed parcel and an appropriation of it to your own use and benefit. Adverse possession does not require absolute exclusivity but that which would be expected from an owner under the circumstances. In this case, Mr. V used the window wells in a manner consistent with that which would ordinarily be exercised by an owner in using land to the exclusion of others. Mr. V knew the window wells existed when he purchased the property in 1999 and continued to use them exclusively to benefit his home.
How do you show "continuous possession for statutory period?"
The term "continuous" for purposes of adverse possession equates to possession for the statutorily required period, and that possession must be uninterrupted or maintained without break or interlude. The statutory time period is ten years in Wyoming.
How do you show "hostile and under a claim of right"?
Possession or use that is hostile and under a claim of right is an assertion of ownership so adverse to, incompatible with and in defiance of the rights of the true owner than an ordinarily prudent owner would be on clear notice that his ownership is in jeopardy, that the claimant intends to possess the property as his own, and that the owner should take some action to protect his title. Because the notice requirement is a fundamental part of an adverse possession claim, a claimant cannot establish his case by relying solely on his testimony as to his subjective hostile intent. He must introduce evidence that such intent was objectively made manifest by his observable words or actions. Here, the court found that window wells carved out of your neighbor's yard for the benefit of your property are an unmistakeable assertion of a claim of ownership. And there was testimony from prior owners of the property in the form of an affidavit.
The takeaway: Be aware of the boundary of your property, know how it has historically been used and be aware of the condition of title. Please reach out to me by telephone at 307.200.1914 or email at [email protected] to discuss your real property. The consultation is free.