Without a survey, it is incredibly difficult to determine where one’s boundary lines lay. Most of the time, it is simply assumed that a fence, tree line, or ditch mark the end of one property and the beginning of another. This is not always the case, but particularly in rural areas people will rely on such markers when setting out fences, roads, or even outbuildings. When an adjacent landowner recognizes that the improvement is encroaching on their land, they sometimes just tear down the encroaching portion, causing significant monetary damages and enmity between the parties.
However, the “encroaching” landowner is not always without recourse. Arkansas recognizes adverse possession based on certain factors that may make the land the landowner’s on equitable or statutory grounds. As described in the Title Defense section, the archetypal example is the mislocation of a fence over years or decades and the defense of the property within by the landowner. But that is just one example of a myriad of situations that may fall under adverse possession.
Since August 12, 1995, Adverse Possession in Arkansas has been governed by ACA Section 18-11-106, which reads as follows:
“(a) To establish adverse possession of real property, the person and those under whom the person claims must have actual or constructive possession of the real property being claimed and have either:
(1)(A) Held color of title to the real property for a period of at least seven (7) years and during that time paid ad valorem taxes on the real property.
(B) For purposes of this subdivision (a)(1), color of title may be established by the person claiming adversely to the true owner by paying the ad valorem taxes for a period of at least seven (7) years for unimproved and unenclosed land or fifteen (15) years for wild and unimproved land, provided the true owner has not also paid the ad valorem taxes or made a bona fide good faith effort to pay the ad valorem taxes which were misapplied by the state and local taxing authority; or
(2) Held color of title to real property contiguous to the real roperty being claimed by adverse possession for a period of at least seven (7) years and during that time paid ad valorem taxes on the contiguous real property to which the person has color of title.
(b)(1) The requirements of subsection (a) of this section with regard to payment of ad valorem taxes shall not apply to a person or entity exempt from the payment of ad valorem taxes by law.
(2) For the person or entity exempt from the payment of ad valorem taxes to establish adverse possession of real property, the person or entity must have:
(A) Actual or constructive possession of the real property being claimed and held color of title to the real property for a period of at least seven (7) years; or
(B) Actual or constructive possession of the real property being claimed and held color of title to the real property contiguous to the real property being claimed by adverse possession for a period of at least seven (7) years.
(c) The requirements of this section are in addition to all other requirements for establishing adverse possession.
(d)(1) This section shall not repeal any requirement under existing case law for establishing adverse possession but shall be supplemental to existing case law.
(2) This section shall not diminish the presumption of possession of unimproved and unenclosed land created under § 18-11-102 by payment of taxes for seven (7) years under color of title or the presumption of color of title on wild and unimproved land created under § 18-11-103 by payment of taxes for fifteen (15) consecutive years.”
What it boils down to is that the owner must have color of title (a deed, either valid or invalid) to the property its self or adjacent property for seven (7) years and have paid the taxes on said property or adjacent property. That does not apply if you are exempt from paying such taxes for one reason or another. There are special rules under section (d) for wild and unimproved lands as well. One can also take advantage of the twenty year rule that existed before this statute and did not require payment of taxes or color of title provided that the twenty years had passed prior to August 12, 1995. It is not necessary that you personally had ownership of the land when the adverse possession occurred.
To make matters more complicated, these rules are in addition to the general rules of adverse possession, which are that the possession be “visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another.” White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 228-29, 61 S.W.3d 235, 237 (2001) (internal citations omitted). The second sentence in that quote really boils the issue down well. If you are treating that land as yours and using it as such, that is sufficient in ordinary cases.
These cases are far more common than you may think. While it is more common in rural areas, it can be seen anywhere, even in your urban back yard. If you have a claim for adverse possession, then that land is yours for all intents and purposes.
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