By Johnathan Hladik, former policy director
Joe and Carol Schmieding’s property included a waterway and a driveway running along its east side.
Land east of the parcel sold in 2001. The exact location of the property line was not determined, so the couple and their new neighbors agreed to share the driveway.
Five years later, Joe discovered a survey marker that marked the boundary line. However, when Joe prepared to modify the driveway and waterway in 2010, the neighbors sued for adverse possession.
What is Adverse Possession?
Adverse possession allows a trespasser to acquire title to land that is not being fully utilized. Developed under English common law, the concept is meant to encourage productive use of land that is neglected, ignored or forgotten. The need arises when a parcel becomes a financial strain for local governments and a source of frustration for neighboring landowners.
Today, this law is often manipulated to take advantage of landowners acting in good faith. In such cases, we believe that a trespassing party should not be financially rewarded for his or her misdeeds.
What happened in court?
The court determined that although the Schmiedings were legal owners, the neighbors could acquire the parcel via adverse possession due to continuous use of the driveway.
“We spent decades on upkeep of the lane and ditch and lost the property in the end,” Joe said. “We were reimbursed nothing.”
Why did the Schmiedings lose?
The couple lives in Nebraska, where five elements must be proven to establish adverse possession.
Use of the property must be actual, requiring use of the property; exclusive, used only by the trespasser; open and notorious, occupancy is not hidden from the owner or general public; hostile, done without permission of the owner; and continuous over a 10-year period.
Under Nebraska law, a victim of adverse possession remains responsible for any taxes or fees assessed on the parcel during the 10-year period. This is true even though the trespasser successfully demonstrated exclusive and hostile use.
What about other states?
Several states have taken steps to prevent this outcome.
- 18 states require payment of property tax to prove adverse possession. Each requires the trespasser pay property taxes on the parcel during all or a portion of the continuous period of use.
- Colorado requires the trespasser pay all property taxes owed on the parcel for 7 of 18 years of continuous use. The trespasser must also compensate the record owner for any taxes paid over the remaining 11 years.
- Alaska considers paid property taxes as proof of use in an adverse possession proceeding.
What can be done in Nebraska?
Because of the Schmieding family, Sen. Mark Kolterman and Center staff, lawmakers in Nebraska are considering a bill to close this loophole. LB 359 would require the trespasser to compensate the original owner for property tax payments made over the 10-year statutory period when the parcel is lost to adverse possession.
A second piece of legislation requiring payment of property taxes as a component to a successful adverse possession claim is being discussed for 2018.
“Our story is just one instance where adverse possession has been used to disadvantage a property owner,” Joe said. “This bill is a step forward in compensating landowners who have met these responsibilities, yet lost the property.”
