By Johnathan Hladik, former policy director
Adverse possession is a common law principle that dates back to 2000 B.C. The legal principle was mentioned in 5,046 cases in the United States between 1960 and 2015. During the same time period, there were 176 cases in Nebraska that cited adverse possession.
Under the doctrine, individuals who have occupied a parcel of land for 10 years can claim ownership if they meet certain legal requirements. To claim adverse possession under current Nebraska law, the requirements are:
- Actual, requiring use of the property.
- Exclusive, meaning only the trespasser is in possession.
- Open and notorious, meaning occupancy is not hidden from the owner or general public.
- Hostile, done without permission of the owner.
- Continuous, occupation over a 10-year period.
Does a land use law created centuries ago still have a place in today’s society? The Center for Rural Affairs recently examined this question in its report, “Adverse to Change: A Modern Look at Adverse Possession.”
There is cause for concern when a landowner who has been paying property taxes on a parcel of land loses it to a claim of adverse possession. Nebraskans take great pride in land ownership, and should be treated fairly when we follow the rules and pay the taxes we owe.
Unlike 18 other states, Nebraska code allows an adverse possessor to claim ownership to a parcel of land even if the original owner has been consistently paying taxes on the property. When this happens, the original owner not only loses the land, but is stuck paying taxes for property they didn’t use. This can result in the loss of tens of thousands of dollars.
Adverse possession is an important doctrine that encourages productive use of property, but it can be manipulated to take advantage of a landowner acting in good faith. Other states have addressed these issues by giving courts the power to award damages for property taxes paid when doing so is fair and equitable to all parties involved. This same action is needed in Nebraska, and we encourage the Unicameral to make this change.
With LB 28, Sen. Kolterman has introduced a proposal to ensure that adverse possession retains its role in encouraging the productive use of land, while guaranteeing that justice is the result.
Our recent report provides a historical perspective of adverse possession and explores the legislative solutions enacted around the country to address issues of fairness. To view “Adverse to Change: A Modern Look at Adverse Possession,” click here.
