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    Title Insurance Client Alert – Virginia Circuit Court Issues Recent Opinion on Adverse Possession

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

    In an October 20, 2021, decision, the Circuit Court of the City of Alexandria, Virginia established title by adverse possession to land disputed by owners of adjoining parcels. In Abboushi v. Veldhuis, 2021 Va. Cir. LEXIS 205, the circuit court applied some finer points of Virginia law regarding adverse possession to the facts of the case in a manner that may be instructive in future cases. 

    Plaintiffs purchased residential property in 1996. At this time, the adjoining property was owned by a neighbor whose first name was Joe. Plaintiffs did not obtain a survey at the time of purchase. Rather, they asked Joe to show them the boundary line between their properties. Joe defined that line as a straight line running along the edge of his driveway to the west side of a large pine tree (the “Pine Tree”) at the back of Plaintiffs’ lot. Joe was mistaken about the true boundary line and the line defined by Joe encompassed an additional area of Joe’s property. Plaintiffs began maintaining the area up to the line defined by Joe (the “Disputed Area”). Over the years, Plaintiffs planted the Disputed Area with bushes, flowers, and shrubs; installed trellises and maintained and replaced them; placed concrete bird baths, urns, and pots; regularly mowed, thatched, and fertilized the area; mulched twice each year; and mowed the grass each week. 

    Joe died in February 2009, and his daughter (“Defendant”) moved into the house in August 2009. In 2011, the Pine Tree died. Defendant asked when Plaintiffs planned to have the tree removed, as she feared it could fall onto her house. Plaintiffs paid for removal of the Pine Tree without contribution from Defendant. Plaintiffs placed a large urn over the stump of the Pine Tree, to which Defendant never objected. In 2019, Plaintiffs installed a stone wall and small metal fence along the driveway line separating the two lots. Defendant did not object to Plaintiffs’ use of the Disputed Area until she wrote a letter dated February 10, 2020 (the “February 2020 Letter”).  

    It was undisputed that: Defendant held Plaintiffs responsible for removing the Pine Tree; Joe never objected to Plaintiffs’ use and maintenance of the Disputed Area; Defendant moved into the adjoining property in August 2009, and Defendant first objected to Plaintiffs’ use of the Disputed Area in the February 2020 Letter. Nevertheless, Defendant argued that Plaintiffs could not establish title by adverse possession because there was permissive use; Plaintiffs failed to delineate a specific “line on the ground” to which they adversely possessed the property; and there was no exclusive possession due to installation of a two-inch drainpipe along the line of Joe’s property. As to the first defense, there was no direct evidence that Joe ever gave Plaintiffs permission to use the Disputed Area – the evidence was to the contrary. As to the second defense, the circuit court found that Plaintiffs intended to claim as their own the Disputed Area up to the line mistakenly defined by Joe. With regard to the third defense, the circuit court could not determine whether the pipe was located on Defendant’s property or in the Disputed Area, or when Joe installed it. 

    The circuit court ruled that Plaintiffs proved by clear and convincing evidence the actual, hostile, exclusive, visible, and continuous possession, under a claim of right, for the statutory period of 15 years required to vest title by adverse possession to the Disputed Area. The circuit court found that the new boundary line was the line mistakenly defined by Joe. The circuit court ordered an official survey of this boundary line. 

    A copy of the Court’s opinion is available here.

    If you have any questions or would like to discuss this new opinion or title and real property issues in general, please contact Jim Windsor at (757) 873.6308 or jlwindsor@kaufcan.com, or Dan Basnight at (757) 873.6309 or dfbasnight@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 2022.