Adverse possession and permissive use.

Adverse Possession and Permissive Use

Adverse Possession v. Permissive Use

We previously wrote here about adverse possession and the factors that must exist to adversely possess land of another. Today, we address the “hostile or adverse” factor and the impact of permissive use.

As we previously wrote, before a person can acquire legal title to land by adverse possession, his use of the property must be adverse or hostile to the interests of the true owner.

If the landowner has permitted the person to use the land, then the use is not “adverse”.

Does that mean that a use that began as permissive can never turn into a hostile or adverse use? No, it can under the right set of facts.

Unfurling the flag.

I have seen some cases that simply state that a use that began with permission of the landowner cannot thereafter result in adverse possession. That is a correct, but incomplete, statement of the law.

“Possession that at its inception is with permission cannot become adverse until a clear claim of hostile ownership is made by the user.” White v. Usry, 800 So.2d 125, 132 (Miss. Ct. App. 2001).

In Stringer v. Robinson, 760 So.2d 6, 8 (Miss. Ct. App. 2000), two adjoining landowners (Robinson and Thompson) were each raising cattle. Their common property line ran through a large gully.

To keep the cattle separate, Thompson proposed to build a fence. But, to avoid the difficulties of building and maintaining a fence in a gully, Thompson suggested that he build the fence on Robinson’s land up above the gully. Robinson agreed.

Thompson later sold his land to Stringer. She subsequently filed suit to have the court declare that the fence was the new property and that she had adversely possessed some of Robinson’s land.

The trial court ruled against Stringer, and she appealed.

Stringer loses on appeal as well.

The Mississippi Court of Appeals agreed that Stringer did not have a valid adverse possession claim.

The Court explained “possession with the permission of the record owner can never ripen into adverse possession, until there is a positive assertion of a right hostile to the record owner which is made known to him.”

Because Thompson was granted permission by Robinson to build the fence on Robinson’s land, and because Stringer acquired the land from Thompson, she was still a permissive user unless and until she “unfurled her flag” and put Robinson on notice that she claimed ownership of the tract of land.

Or, as was more poetically quoted in Blankinship v. Payton605 So.2d 817, 819-20 (Miss. 1992):

An adverse possessor must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.

All Stringer had done was make some modest repairs to the fence. That was simply not enough.

What might transform a permissive use to an adverse one?

There are several ways in which a permissive user could become an adverse user. Just a few example might include:

  • Continuing to use the land after the owner says to stop.
  • Making a use of the land that goes well beyond the permitted use.
  • Fencing off the permitted area and denying access to it by the true owner.

If you think you have a legal issue involving adverse possession, give us a call and let us help.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110