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Adverse Possession

§ 7.18
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.

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.

Case studies
  • An Arkansas court ruled that a neighboring landowner had a legal right to use a roadway across church property to access a public road because he and his family had used the roadway for a sufficient length of time without objection by the church. A trial court ruled that the neighboring family had a legal right to use the driveway on the basis of an "easement by prescription." Such an easement arises by operation of law after a landowner uses a roadway across another's property for a sufficient length of time. A state appeals court agreed. It conceded that Arkansas does not have a statute specifying the length of time needed to establish an easement by prescription, but it noted that the state Supreme Court has applied the seven-year period for acquiring title to land by adverse possession. The court noted that "where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right."[233] Johnson v. Jones, 977 S.W.2d 903 (Ark. App. 1998).
  • A neighboring landowner claimed title to 2 portions of a church's property as a result of adverse possession. The first portion of land claimed by the neighbor was land up to a boundary line that was set back several feet onto the church's property. For at least 11 years, the church and neighboring landowner considered this line to be their actual boundary line. The second portion of land claimed by the neighbor was a tract that he maintained for more than 11 years. A New York appellate court concluded that the church had lost its right to both portions of land. With respect to the first portion (land lost by the incorrect boundary line), the court observed, "Testimony shows the practical location of the boundary line and acquiescence thereto by the respective property owners for at least 11 years. Practical location and acquiescence for the statutory period is conclusive as to the location of the boundary line." With respect to the second portion of property (that had been maintained by the neighboring landowner), the court observed that for 14 years the neighboring landowner "cultivated and maintained the subject parcel, mowed it, planted a garden and trees on it, and erected a garage, swimming pool, storage shed and clothes line on it. We find that these facts established that [the neighbor] possessed the parcel hostilely and under claim of right, actually, openly and notoriously, exclusively and continuously for the statutory period." This case demonstrates the potential loss of property that may result from erroneous boundary lines and fences, and the maintenance and use of a portion of a church's property by a neighbor.[234] Chavoustie v. Stone Street Baptist Church, 569 N.Y.S.2d 528 (A.D. 4 Dept. 1991).
  • A Tennessee court ruled that a woman who used a path across a church's property had not acquired an easement because her years of use were less than the 20 years prescribed by law for adverse possession.[235] Thompson v. Hulse, 2000 WL 124787 (unpublished decision, Tenn. App. 2000).
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