How is Adverse Possession Established in Kentucky?
Full Question:
Answer:
Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. The time period in Kentucky is 15 years. Payment of taxes alone isn't sufficient to claim a property by adverse possession. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.
In Kentucky, no action for the recovery of real property, including establishment of prescriptive easement, right-of-way, or adverse possession, may be brought by any person whose claim
is based on use solely for recreational purposes.
An adverse possession claim will be defeated if it can be shown the use was with the owner's permission. It appears that the use of the neighbor's property was with permission, so that it was more in the nature of an easement or license. You may have the previous owner prepare an affidavit to prove tht an oral easement was given. Generally, an oral easement creates a freely revocable license which is freely revocable at the will of the licensor unless estoppel applies to bar revocation. Estoppel is an legal theory based on equitable principles of fairness. Estoppel will apply to bar revocation but only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation. It is possible that in a quiet title action, the court may use its equitable powers to find an easement exists.
There are basically two types of easements- easements in gross and appurtenant easements. Easements in gross are personal rights given to individuals or specific groups. Once the easement owner dies or, in the case of corporations, dissolves, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.
When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.
To terminate an easement, a condition for the purpose of the easement must have changed, such as:
• Easement's purpose no longer exists
• Ownership of the easement and of the land where the easement is located merges into one owner
• Land owner releases the easement
• Easement is abandoned
• Nonuse (of a prescriptive easement)
• Adverse possession by the owner of the land where the easement is located
• Court judgment in a quiet title action
• Misuse of the easement
Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.
I suggest you consult with a local attorney who can review all the facts and documents involved.
Please see the following KY statutes:
413.010. Action for recovery of real property — Fifteen year
limitation.
Subject to KRS 411.190(8), an action for the recovery of
real property may be brought only within fifteen (15) years
after the right to institute it first accrued to the
plaintiff, or to the person through whom he claims.
413.060. Person holding land under adverse title for
seven years — Extension for disability.
(1) No action shall be brought under or by virtue of an
adverse, interfering entry, survey or patent to recover the
title or possession of land from an occupant if he, or the
person under whom he claims, has a connected title thereto in
law or equity, deducible of record from the Commonwealth, and
has an actual occupancy of it by settlement thereon, under
such title, for seven (7) years before the commencement of
the action. This possession of land shall bar the right of
entry into it by any person, under an adverse title or claim,
and sufficient possession to bar the right to recover it
shall vest the title in the occupant or his vendee.
(2) The provisions of subsection (1) of this
section shall not apply to a person who is an infant, of unsound mind
or out of the United States in the employment of the United
States or of this state at the time the cause of action
accrued, until seven (7) years after the removal of such
disability. The disability of one (1) of several claimants
shall save only his own right, and not that of another.
