By James L. Windsor, Catrina C. Waltz, Real Estate Claims & Title Insurance Solutions

Last week, the Court of Appeals of Virginia rendered a significant opinion regarding the meaning of exclusivity required for claims of adverse possession. In Veldhuis v. Abboushi, Record No. 0776-22-4 (Ct. App. Va. May 9, 2023) (attached), the Court affirmed the Circuit Court of the City of Alexandria’s finding of adverse possession in a dispute between neighbors.

In 1996, the Abboushis purchased property in Alexandria. The neighboring property was owned by Carroll. At the time of purchase, the Abboushis did not obtain a land survey; rather, they relied on their neighbor Carroll’s statements that the boundary between their properties was a “straight line” along the western edge of Carroll’s driveway to the east side of a large pine tree at the back of the Abboushi property. Carroll further identified the property line as running along his driveway and back to a pink azalea bush the Abboushis planted in 1996. From 1996 forward, the Abboushis began maintaining an area east of the property line, the now disputed area.

At trial, the Abboushis presented evidence of their maintenance of the disputed area. The Abboushis installed and replaced stakes, wires, and trellises to ward off deer, installed a privacy lattice fence, mowed the grass, thatched, seeded, raked, and mulched, planted flowers and azalea, weeded, trimmed, and fertilized, placed a birdbath, ornamental urn, and flower pots, and erected a short stone wall. One neighbor testified that Mrs. Abboushi’s efforts in maintaining the disputed area were “like a full-time job.”

There were no obstructions that prevented Carroll from observing the Abboushis’ maintenance of the area, and Carroll never objected to it. In fact, in the mid- to late-2000s, Carroll sought the Abboushis’ permission to install an underground pipe along the edge of his driveway, in the disputed area, to direct water away from his garage. The Abboushis consented, and Carroll installed the pipe, which benefited both neighbors.

Carroll passed away in 2009. His daughter and son-in-law, the Veldhuises, inherited Carroll’s property and moved in the same year. The Abboushis continued maintaining the disputed area, including paying to remove the large pine tree that died and placing an urn over its stump. They installed a stone wall, metal fence, and raised bed along the driveway separating the properties. The Veldhuises did not object to the Abboushis’ use of the disputed area until February 2020.

The Abboushis made a claim of adverse possession of the disputed area. The Veldhuises argued the pipe installed by Carroll was fatal to the adverse possession claim because it negated the Abboushis’ exclusive possession of the area. The circuit court disagreed and found the Abboushis made a successful claim of adverse possession, which the Veldhuises appealed.

The Court of Appeals held it was undisputed that Carroll, and subsequently the Veldhuises, originally owned the disputed area in fee simple. To establish title by adverse possession, the Abboushis were required to prove actual, hostile, exclusive, visible, and continuous possession, under a claim of right, for the statutory period of fifteen years. While the Veldhuises argued that Carroll’s installation of the pipe negated exclusivity, in contrast, the Court found it dispositive in favor of proving adverse possession. The Court held “the possession must be under a claim of right and adverse to the right of the true owner.” Carroll’s seeking permission from the Abboushis and the Abboushis’ approval proved the Abboushis’ claim of right, because the act of granting another permission to use one’s property indicates that the grantor views himself, and not another, as the rightful owner of the property. Carroll thus used the land as a licensee or invitee of the Abboushis, not as the true owner. Carroll requesting permission also proved Carroll viewed the Abboushis as the true owners. Thus, Carroll knew of and acquiesced in the Abboushis’ exclusive claim of right to the property, and the Abboushis successfully proved all claims for adverse possession of the disputed area.

This important opinion clarifies the meaning of exclusivity required for adverse possession, emphasizing that an adverse possessor may grant permission to the actual owner for use and possession of the property and still maintain the required element of exclusivity.  If you have any questions regarding this opinion on adverse possession, or title and real property questions in general, please contact Jim Windsor at (757) 873.6308 or jlwindsor@kaufcan.com, or Catrina Waltz at (804) 771.5744 or ccwaltz@kaufcan.com.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.