When Boundaries Get Blurry: Understanding Adverse Possession

What happens when the land you thought you owned is no longer your land?

Farming and ranching are tough businesses — and legal issues can make them even more complicated. That’s why this season features Harvesting Legal Knowledge, a conversation between NDFB and the Ohnstad Twichell Law Firm.

NDFB’s Executive Vice President and CEO Jeffrey Missling and the attorneys at Ohnstad Twichell break down key legal topics impacting farmers, ranchers, and ag businesses every day.

In today’s episode, Jeffrey dives into adverse possession with Tiffany Findlay and David Piper of Ohnstad Twichell — what it is, how it happens, and how to navigate complex boundary situations when every acre matters, and the importance of good neighbor communication in protecting your operation.

As always, if you have a specific legal question, be sure to consult an attorney who can address your situation.

Let’s get into the episode.

Links: 

Harvesting Legal Knowledge (Adverse possession starts at the 14:07 mark)

Contact us at emmery@ndfb.org

Disclaimer: The statements made and information provided in this podcast are for educational and informational purposes only. The statements do not constitute legal advice, nor are they intended to create an attorney-client relationship. Every situation is unique, so you should not rely on any statements in this video as a substitute for personalized legal counsel. Before taking action or making any decisions which may affect your legal rights and obligations, you should consult with an attorney licensed in your jurisdiction.

Transcript

[Straight Talk Theme]

[00:11] Emmery: What happens when the land you thought you owned is no longer your land? Welcome to Straight Talk with NDFB. I am your host, Emmery Mehlhoff. Farming and ranching are tough businesses, and legal issues can just complicate things.

[00:27] That's why this season features Harvesting Legal Knowledge, a conversation between NDFB and the Ohnstad Twichell Law Firm.

[00:35] NDFB's CEO Jeff Missling and the attorneys at Ohnstad Twitchell break down key legal topics impacting farmers, ranchers, and ag businesses every day.

[00:45] In today's episode, we're diving into adverse possession, what it is, how it happens, and how to navigate complex boundary situations when every acre matters, and the importance of good neighbor communication in protecting your operation.

[01:01] As always, if you have a specific legal question, be sure to consult an attorney who can address your situation.

[01:08] Let's get into the episode.

[Straight Talk stinger]

[01:12] Jeff: My name is Jeff Missling. I'm the Executive Vice President and CEO of the North Dakota Farm Bureau. With us this morning, we have Tiffany Findlay and David Piper of Ohnstad Twichell Law Firm.

[01:23] Boundary issues.

[01:24] More and more, I feel like we get phone calls on this because as land switches his hands, especially, you know, you're trying to figure out having a survey done, where are the boundaries. But what are some common issues that arise with adjacent landowners and dealing with adjacent landowners?

[01:40] Tiffany: I think, like you just sort of stated, the most prevalent is where is that line?

[01:45] You know, where are you farming versus where is your neighbor supposed to farm? Who owns the ditch? Who doesn't own that tree line over there? I think the most common advice that David and I can say is just go get the survey.

[02:01] It doesn't matter what the cost is. In the end, that cost is going to outweigh itself with the worth that it's going to give you in figuring out exactly what you own, what you don't own, and what other things are there that a survey can pick up?

[02:15] David: You know, as far as the survey goes, I mean, a lot of the times there's, there's some kind of multiple marker, whether it's a tree line or if it's a, you know, the old fence like mom and dad called or, Grandma and Grandpa called it, or the original fence.

[02:28] And, and maybe, you know, at some point that got damaged or destroyed and someone built a new one and, and they built it 10 or 20 feet over because that's what they thought the line was. Or if there's a creek or a dry creek or some kind of riverbed running through there.

[02:44] You know, maybe there was a handshake agreement with with grandpa and the neighbor of, hey, you can, yeah, you can farm up to that creek bed. Because I don't want to drive my equipment around the section line to get over there. And it's only about an acre, and I just don't care.

[02:57] And maybe grandpa's wrong. Maybe it's three acres, maybe it's five acres. But then, you know, then there's the issue of, okay, Grandpa's been letting that happen for 30 or 40 years or even 10. And then it goes on to the next generation. The land does.

[03:11] There's a new owner on the next piece of land, too. They think they own it. No one has it surveyed, no one talks about it. And then with the price of ag land these days, you know, and in our area, $10,000 an acre is not uncommon. In some areas here, that's low.

[03:30] In other areas of state, it's, you know, 3, 5, 7. But it still adds up. It's still valuable land. And last time I checked, they're not making more of it. So you gotta keep your land as much as you can.

[03:42] And that survey is, you know, a couple thousand bucks, maybe less, maybe, maybe a little more these, you know, these days. But it's gonna be well worth it to find out. Okay, here's the land. This is our. This is our quarter. This is our section.

[03:56] Yeah, we know where it is now. We know that if someone starts farming over that, we can stop them, prevent what's called adverse possession from happening, which I don't know if Tiffany wants to talk more about that or...

[04:05] Tiffany: With the adverse possession? Yeah. No, it can be a very common issue. I mean, I. I think we're starting to learn that every square foot, not, not only every acre matters.

[04:17] So when you're looking at someone who has been farming, you know, up to or over the ditch for the 10 years or so, they start to feel like they own it. They start to control the land, control that ditch. They begin to, you know, make it their own. They start to have the elements for adverse possession building up in their favor.
 
[04:46] And once those elements become, you know, prevalent and, and they are there, it's hard for that land to be reverted back to the original ownership that there was initially.

[04:59] Um, you know, the. Especially with, with what I see with drainage ditches, natural water flow, it can be come more and more important to know who owns that ditch, who owns that land. who has the right to maintain it and clean it out.

[05:15] Because if you don't know and you allow your neighbor to go in and, and farm that and maintain it and clean it. If it's dry ditch, if it's a wet ditch, pretty soon they can commence what we say an adverse possess action to claim title to that land.

[05:35] Jeff: The issue of communications comes up again here, I feel like, but in dealing with neighboring landowner, adjacent landowners on water and drainage issues, always an issue, I guess, that I hear about a lot. And so any feedback on that about, about that communication piece with adjacent landowners?

[05:54] David: I mean, it's, it's hard to do. You know, sometimes we have great neighbors, sometimes we have less than great neighbors. And you know, you got a good neighbor, they, they talk with you too, and hopefully you're communicating with them.

[06:05] But I mean, what do you do if they shut down or if they don't respond or they don't want to talk about it? You know, you got to protect yourself, right? You got to protect your family land. Your land.

[06:14] But 100%, Jeff, I mean, communication is huge, and sometimes it'll. it'll work out. And you've got a good neighbor that, that wants to make sure they're doing the right thing too.

[06:24] And then sometimes, you know, you've got someone, whether it's unfortunately the next generation, who didn't have that relationship with mom and dad or grandma, grandpa, or they bought it from the neighbor, and the neighbor didn't have any kids who wanted to keep farming or couldn't keep farming.

[06:38] And they don't have that relationship that tie with you to sit down and, and want to be neighborly. So, I mean, that's another reason why having those surveys done is important.

[06:47] And if nothing else, you know, if, if you're showing that you're trying to communicate with them, you know, that is something that is considered. If this thing does get litigated ultimately and the court's gonna say, like this party was being reasonable, they were trying to work with you, you just kind of stonewalled them, and that's not gonna be in your favor generally. But yeah, I mean, communication is huge.

[07:08] It, hopefully it helps people avoid the issues on the front end and help, you know, the family farm committee to run smoothly.

[07:16] Emmery: As we listen to Jeff, Tiffany and David, it becomes clear how quickly boundary questions can turn into real legal challenges for landowners.

[07:26] Tiffany: I mean, adverse possession isn't necessarily something that we like to talk about or think happens maybe as frequently as, as people are concerned about it. So something to also keep in mind is that if they are attempting to claim title to that land, if you can't have that communication and there's there's no relationship there, you know, that's when people come to you, David, to, to make sure that the action is actually brought to a court.

[07:56] Until that action is brought to a court, there can be no official adverse possession claim. You know, so it does take a little bit more than simply, you know, claiming that you own the land to actually officially transfer that property over to your name. Not to mention the amount of time that it takes.

[08:17] Well, yes, you know, when you're going through the generations, it can get quite easy to satisfy that 20 year time period. But I feel like it's a good reminder that that neighbor who is encroaching on your property does need to go and see someone like David to make sure that they can actually get that property in their name and give you a chance to, to reclaim your ownership on it.

[08:43] David: And sometimes it's, it's not intentional. Right? I, I had a client who, they had the family farm in, in Richland County, you know, a few years ago. And my client's driveway had been on the neighbor's side of the, of the quarter line for 75 years.

[09:00] And the other party didn't know that to think about that. And our client and everyone thought that this is the line, you know, and, and the line was actually over here.

[09:10] And so my client didn't have kids. He was 75, he was retiring, he was moving down to Arizona and he wanted to sell the farm, but he happened to have a survey done and, and he found out that, oh, oh no, like my driveway's on my neighbor's land. And so he did the right thing. He talked to his neighbor. The neighbor reacted poorly. And my client could not move his driveway somewhere else just because topography, it would have been a hundred thousand dollars to put in a new road there just because of the topography. And he had a crick running through it.

[09:45] And so we eventually got it figured out. But, you know, it's one of those things where it wasn't intentional.  Everyone this family, this family had thought, okay, here's the line and then we're over here and how do we make that work? So we eventually figured out a way to, you know, have the line stay on our side of the driveway so we could keep it.

[10:05] And then north of that, we gave them some of the land. But it's, it's hard to give up land, you know, even if, and our client had a good case for adverse possession, they used it, you know, exclusively, continuously for literally 75 years.

[10:19] And they had a good claim. But it would have been more expensive to litigate that for, you know, a couple of acres than to just make something work out with the neighbors and try to do the right thing.

[10:29] So it, you know, it's not always intentional, but either way it's a problem and we gotta get it fixed. So he, he got it fixed, able to sell his house and his, the rest of his quarter and got it resolved. But, you know, it was a mess he was not expecting. And those things happen.

[10:44] Jeff: Yeah, little things can become big things when it comes to, you know, property very quickly and field approaches that type of stuff. A couple other questions in regard to adverse possession.

[10:54] Can you pay the real estate taxes on a parcel and claim it as yours?

[10:58] David: It's a great question. If you meet the other elements of adverse adverse possession, you can. So normally the adverse possession timeline is a 20 year timeline.

[11:08] You've got to use it, you've got to meet certain elements. And there's five elements. I know there's five elements. You have to meet the five elements for that continuous 20 years. But if, if someone's paying the taxes, that gets shortened down to 10.

[11:21] So whether you were paying the taxes in good faith because you thought it was yours or because you're trying to adverse or possess, I mean that's, that's something that's gotta get figured out. But you're right. I mean, if you think, oh, you know, so and so has been. Here's the crickline. They've been going over it for seven or eight years.

[11:40] I'm not gonna worry about it because I know I talked to my attorney a few years ago. Adverse possession takes 20 years. Well, if that's a separate parcel or they're paying the taxes, they have a claim a lot sooner half the time than you think they do. So.

[11:54] And it's, it's never, it's never black and white. Right. There's always a thousand shades of gray. It's either really gray or, or less really gray. It seems like it's never like light gray.

[12:02] It's usually right in the middle. Or it's, or it's very, very murky. So yeah, I mean that is a real issue. That's a real thing. You can, you can either have the adverse possession time frame of 20 years cut down on you, or you could cut it down in half if taxes are being paid. That's a great point.

[12:19] Jeff: The process to verify ownership on an adverse possession, is it the five elements like you mentioned earlier? Is that the actual process?

[12:27] David: Yeah, there's. Yeah. So I mean, if someone thinks they have a claim for adverse adverse possession you know, even if all it is is a claim until a judge says that's yours and they rule in your favor.

[12:37] So if there's financing that needs to be done, either operating lines for the year or, or maybe refinancing a farm loan, if that litigation pops up, that's going to create issues possibly with your lender, which creates more issues, you know, for that year. And so, yeah, I mean, if, if there's those five elements and they've, they've got to be satisfied before a judge actually says, okay, you know, John Smith has adversely possessed this land, he satisfied all five elements.

[13:06] And now I'm going to issue an order that says it is his. But I mean that's, that's a year long process. It could be a two year long process. The court systems are backlogged. They're, they're slammed. They are incredibly busy. You know, like a lot of us, they've got time restraints and maybe they're understaffed. Especially in our smaller, you know, counties in North Dakota where we have smaller populations.

[13:29] There's still litigation going on, but there's only maybe one judge or one courtroom. And they can only get so many hearings done in a day, so many trials done in a month or in a year.

[13:39] So that's a factor too, of, okay, I've got a good claim for this adverse possession. Whether I intentionally did or not. It's worth 50 or 60 or $70,000 of land. It's going to take me a year or two to get it.

[13:55] And maybe the neighbor says, okay, like it's going to be expensive. Do we just try to work something out? The answer is hopefully yes. Let's try to figure something out.

[14:02] Tiffany: It's always what we can hope for, but strive for.

[14:05] David: Kind of just seems like a false hope. But we hope, we hope anyways.

[14:09] Jeff: Anything else we missed on adverse possession,

[14:12] David: that's, that's pretty much it. There's, there's tons of factors to consider that the court considers. You know, there's why else was called hostility. And it's not whether they are aggressive in nature, it's, it's whether or not their use is hostile to your use.

[14:27] So it's, it's, they could be the nicest guy in the world and if they're using exclusively to your detriment, you know, that's going to be, you know, potentially satisfy that element.

[14:36] But there's, there's a lot of factors. Our, our advice is to try to communicate if they won't, whether it's to protect your interest you're trying to obtain or to prevent them from obtaining interest in your land.

[14:48] Talk to an attorney, come talk to us. We'll help you out. We'll do our best to get it hopefully resolved quickly and as economically efficient as possible. But that's not always in our hands or your hands if your neighbor is being obstinate or aggressive or whatever.

[15:05] We can only control what we can control, just like you can control what you control. So it's, it's tough.

[15:11] Tiffany: And that's really our goal, is just to make sure that you know what you think your property is, is your property. You know, that's, that's what we try to make sure. We try to make sure everything is right, especially on the first go around. But things happen and we're here for that too.

[15:26] David: Thank you, Tiffany.

[15:27] Jeff: Thank you, David.

[Straight Talk stinger]

[15:30] Emmery: You've been listening to Straight Talk with NDFB, Harvesting legal Knowledge. To watch the entire interview with Jeff and Ohnstad Twichell, please click the link below. If you have any questions, contact as at emmery@ndfb.org.

[Straight Talk theme]

Disclaimer: The statements made and information provided in this pocast are for educational and informational purposes only. The statements do not constitute legal advice, nor are they intended to create an attorney-client relationship. Every situation is unique, so you should not rely on any statements in this video as a substitute for personalized legal counsel. Before taking action or making any decisions which may affect your legal rights and obligations, you should consult with an attorney licensed in your jurisdiction.