Question: I have an Arizona real estate law question. I recently received a notification from the Arizona Department of Transportation that my fence is blocking their highway right-of-way. I have fenced off this right-of-way for at least 10 years, but ADOT is demanding that my fence be removed from the right-of-way. Can ADOT after more than 10 years force me to remove my fence?
Answer: Probably. Generally, title to any real property interest such as a right-of-way owned by the state or other governmental entity cannot be acquired by adverse possession. Therefore, even though ADOT has not used the right-of-way for more than 10 years, ADOT probably can require you to remove the fence.
Note: The principle of adverse possession goes back to early English common law. The theory is “use it or lose it.” In other words, if the landowner is not using the land and another person is using the land without the landowner’s permission, the other person after a reasonable time (in Arizona generally 10 years) should be entitled to ownership of the land. #CLG-bp~2