Does Adverse Possession Require Actual Use of the Property?

  Lot A and Lot B in a subdivision were bought by separate owners twelve years ago.  The block wall dividing Lot A and Lot B was incorrectly built three feet onto Lot A’s property.  Although the owners of both Lot A and Lot B intended to build homes on those lots, after twelve years both lots were vacant with no improvements.  In addition, other than a couple of visits to the lots, neither owner had done anything with the lots.  The owner of Lot B now does a survey that shows the block wall is built three feet onto Lot A.  Does the owner of Lot B own this three feet through adverse possession even though the owner of Lot B never improved, occupied, or otherwise used Lot B?

  Probably not.  The Arizona Court of Appeals has said that “enclosure coupled with the claimant’s mere general use of property within the enclosure is sufficient to prove adverse possession . . . .”  Berryhill v. Moore, 180 Ariz. 77, 84 (Ct. App. 1994) (emphasis added). In Okuna v. Nakahuna, 594 P.2d 128, 132 (1979), the Hawaii Supreme Court held that infrequent visits to the property would not constitute adverse possession, i.e., “mere general use.”  Therefore, a couple of visits by the owner of Lot B in twelve years would probably not be sufficient for “mere general use” and Lot B would not acquire the three feet by adverse possession.

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