Lisa and Danny are dealing with a case of trespass to property. The term trespass refers to an offence against a property or a person. In relation to real estate law, the term “trespassing” refers to entering onto the land of another person without the owner’s permission (Statsky, 2011). In the case of Lisa, she built a Gazebo and a fence between her yard and Danny’s yard. After a survey that was done fifteen years later, Danny found out that the gazebo had been built on a section of his yard. This implies that even the fence that Lisa built was on Danny’s yard. Thus, it is apparent that Lisa trespassed onto Danny’s Yard. The land owner can bring a suit to the court of law to evict the trespasser and/or to seek for damages. Danny sought to evict Lisa from her yard.
In this case, however, Lisa can use the legal doctrine of adverse possession in the court of law to defend herself from immediate eviction. The law on adverse possession allows the trespasser to own or to use the piece of land he or she trespasses for a specific period of time. The court uses a four-factor test to determine whether or not trespassing qualifies as adverse possession. First, the court determines whether or not trespassing was “hostile.” The term “hostile” does not imply that the trespasser used aggression to possess the land. Instead, the trespasser may have made a good faith mistake (Statsky, 2011). Another attribute of a hostile claim is that trespassing involves simple occupation, which implies that the trespasser does not need to have knowledge that the land belongs to another person. Another attribute of the hostile claim is that the trespasser must have been provided with evidence that would make him or her aware that he or she is trespassing (Statsky, 2011).
The second factor considered by the court is that the trespasser must have actually possessed the land and treated it as if it was his or her own. Evidence of physical possession can be provided in the form of documents showing trespasser’s efforts to improve the land (Statsky, 2011). The third test is that the trespass must have been “open and notorious.” This implies that anyone, including the land owner, would have acknowledged that the trespasser was on the land. If a case the trespass passes the first three tests, the fourth step by then court is to give the trespasser “exclusive and continuous” possession of that land. The court defines a specific period of time during which the trespasser must possess have possession of the land without intrusion by the land owner (Statsky, 2011).
The case of Lisa’s trespass is likely to pass the first three tests of the doctrine of adverse possession. Lisa occupied the land in good faith, although she was informed fifteen years later that she was trespassing. Lisa can also prove physical possession of the land with the Gazebo and the fence she built. Her case also qualifies as open and notorious possession. In such a case, the law of California, in which the land trespassed is located, stipulates that the trespasser must have exclusive possession of the land for a period of 10 years (Farkas, 2011). In this regard, Lisa is likely to win if she relies on the doctrine of adverse possession and to occupy the land over the next 10 years.
- Farkas, B. (2011). Who Can Claim Property Based on Adverse Possession in California? Retrieved from https://www.nolo.com/legal-encyclopedia/who-can-claim-property-based-adverse-possession-california.html
- Statsky, W. P. (2011). Essentials of Torts. New York, NY: Cengage Learning.