ABC Corp. is contemplating selling its commercial warehouse property. ABC Corp. is concerned that a portion of its property may be subject to an adverse possession claim and would like to assess the risk prior to listing the property for sale.
ABC Corp. owns a 10-foot wide strip of land that is outside the fence located on ABC Corp.’s property. ABC Corp.’s neighbor (“Neighbor”) owns property adjacent to ABC Corp.’s property. Fifteen years ago, Neighbor began storing building materials and construction equipment on the 10-foot wide strip of ABC Corp.’s property which is outside ABC Corp.’s fence. Neighbor did not obtain ABC Corp.’s permission to store materials or equipment on ABC Corp.’s property.
Is property at risk of an adverse possession claim?
In Illinois, Neighbor could attempt to claim title to the 10-foot wide strip of ABC Corp.’s property through adverse possession. However, Neighbor would need to prove that Neighbor’s possession of ABC Corp.’s property was: (1) continuous, (2) hostile, (3) actual, (4) open, notorious and exclusive ABC Corp., and (5) for 20 years.
Thankfully for ABC Corp., Neighbor’s use of ABC Corp.’s property has only transpired for 15 years. If Neighbor is not able prove that all of the elements of adverse possession existed concurrently for 20 years, Neighbor’s adverse possession claim should not be successful at this point in time.
How can a future adverse possession claim be prevented?
ABC Corp. could send a written notice to Neighbor informing Neighbor that Neighbor has ABC Corp.’s permission to use the 10-foot wide strip of ABC Corp.’s property for Neighbor’s garden, to eliminate the hostile element.
ABC Corp. could have ABC Corp.’s property surveyed and could move the fence to ABC Corp.’s property line in order to regain possession and use of the 10-foot wide portion of ABC Corp.’s property that Neighbor has been using for storage.
This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
Wendy M. Reutebuch | Real Estate, Real Estate Finance and Creditors’ Rights
Wendy represents clients in both Illinois and Wisconsin in a wide variety of commercial real estate and real estate finance transactions. In addition to handling acquisitions, dispositions and leases, Wendy also advises lenders on loan transactions, loan workouts, loan restructurings, forbearance and pre-foreclosure matters. If you need assistance with a related matter, contact Wendy.