Church Loses Land Title by “Adverse Possession”

Key point 7-18. Churches can lose a portion of their property to a neighboring landowner as a result of “adverse possession,” if the neighbor openly and adversely occupies church property for the length of time prescribed by state law.

An Indiana court ruled that a church lost title by adverse possession to a portion of its property that was openly and continuously used by a neighboring landowner for several years without objection.

A church subdivided part of its property as part of a plan to sell a portion of it. A survey was conducted prior to the subdivision of the property. This survey revealed a discrepancy in the property line between the church’s property and the property of a neighboring landowner (the “plaintiffs”). The area in question (the “disputed area”) was a triangular shaped area along the parties’ property lines. The disputed area was confirmed in a subsequent survey.

The plaintiffs’ garage has been partially located in the disputed area since before the plaintiffs purchased the property in 1983. A shed belonging to the plaintiffs is also located in the disputed area. In 1995, the plaintiffs replaced the original fencing and, in 2003, rebuilt their garage. Both the new fencing and the garage were rebuilt in the exact location as the prior fence and garage. The plaintiffs have always taken responsibility for the upkeep of the disputed area and have always used the land in question and mowed it. The plaintiffs have been paying taxes on the disputed area since purchasing their property in 1983.

In 2014, the plaintiffs filed a lawsuit to determine ownership of the disputed area. The trial court issued an order awarding title to the disputed area to the plaintiffs. The church appealed.

A state appeals court noted that the doctrine of adverse possession entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration, as follows:

1. Control—The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of actual, and in some ways exclusive, possession);
2. Intent—The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of claim of right, exclusive, hostile, and adverse);
3. Notice—The claimant’s actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant’s intent and exclusive control (reflecting the former visible, open, notorious, and in some ways the hostile, elements); and
4. Duration—the claimant must satisfy each of these elements continuously for [ten years].

In addition to these elements, “the adverse possessor must pay all taxes and special assessments that the adverse possessor reasonably believes in good faith to be due on the real property during the period the adverse possessor claims to have adversely possessed the real property.” Once the elements of adverse possession are established, “title to the disputed tract of land is conferred upon the possessor by operation of law, and title is extinguished in the original owner.” Further, “once title vests in a party at the conclusion of the ten-year possessory period, the title may not be lost, abandoned, or forfeited, even where the party pays rent to the titleholder, agrees to a survey to attempt to find the true boundary line, expresses satisfaction with a survey whose results are inconsistent with the property adversely possessed by him, or states that he does not claim the land and offers to buy it.”

In this case, the plaintiffs “continuously demonstrated the elements of adverse possession of the entire disputed area since 1983. As such, title vested with the plaintiffs no later than 1993, well before the church subdivided and sold a portion of its property. . . . We therefore conclude that any subsequent objection to the plaintiffs’ use of the disputed area by . . . the church was insufficient to undermine the plaintiffs’ ownership of the disputed area.”

What This Means For Churches:

This case illustrates an important point. Churches may lose legal title to property that they allow a neighboring landowner to use openly, adversely, and without objection for the prescribed period of time. As in this case, the question of adverse possession often arises as a result of a survey. And, as this court concluded, once title vests in a party by adverse possession, “the title may not be lost, abandoned, or forfeited, even where the party pays rent to the titleholder, agrees to a survey to attempt to find the true boundary line, expresses satisfaction with a survey whose results are inconsistent with the property adversely possessed by him, or states that he does not claim the land and offers to buy it.” Boas v. Hayden Methodist Church, 110 N.E.3d 1190 (Ind. App. 2018).