Daily Development for Monday, May 12, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

PERMISSIVE USE; "COMMON AREAS:"  Where subdivision lot
owners'  use of adjacent common areas exceed a reasonable exercise of
their right to use common ground, such use for the statutory period may
be the basis for a successful adverse possession claim.

Dobbs v. Knoll, 92 S.W.3d 176 (Mo. Ct. App. 2002).

Three landowners filed suit against the trustees of their subdivision
association to quiet title to the property behind heir respective parcels.
Each of the landowners had used a portion of the common area behind
their home as though it were part of their yard, maintaining it and
landscaping it in a way that made it difficult to access that common area
from anywhere but the landowner's  backyard.

The property in question was shown on the Plat as "Community Area
and Common Easement" and apparently fee ownership was in the

In one case, the landowners had been told when they purchased their
home that they owned to the fence at the rear of their property.  After
four years the trustees informed them that this was not correct, and
demanded that the fence be moved.  They did not do so, and the trustees
did nothing. In the other two cases, however, it appeared that the landowners had
simply extended their yard activities into property that they knew was
commonly owned.  They planted gardens, landscaped, installed in one
case a sprinkler system, and in another case holly hedges and landscaping
railroad ties, so that access through the areas, although not impossible,
was impeded.

 The Court held that the couples had each demonstrated all of the
elements of adverse possession for the statutory period.  The trustees'
argued that the homeowners' uses were permissive, the Court responded
that in each case the plaintiffs'  use of the common ground adjacent to
their respective lots "exceeded a reasonable exercise of their right to use
the common ground."

Comment 1: Note that if this property were owned by the individual unit
owners as tenants in common, we might have had a different result.
Here, the commonly owned interest was solely an easement, arguably for
limited common purposes, and uses that went beyond the common
purposes were patently adverse as against the fee owner.  In the case of
property owed in common in fee, each owner theoretically has a
complete right of possession, and even fencing and other exclusive
activities are consistent with the common right unless an intent to "oust"
is made clear or unless the other users manifest an attempt to use the
property and are excluded.

But normally, when a cotenant establishes an adverse claim, it does so
for the benefit of the cotenancy.  Here, the easement in question was
owned by the various subdivision owners in cotenancy, but the owners
each got individual ownership as a consequence of their adverse use.
Makes sense, since they clearly were not acting in their capacity as
cotenants, but it's a little warp on the theory.

Comment 2: Even allowing for the fact that the theory supports the result
here, the editor hates it.  He has no concern about the first case, where
there was clearly a claim of right and a communicated ouster when the
landowner refused to remove the fence.  But the other two cases are a
quite different breed.  The essential issue to the editor is whether the
actions of the landowners in developing their areas were in fact (and not
in theory) excluding others who might have used the properties.  If not,
then, since the purposes of the "easement" were not made clear, why
wouldn't the permitted uses comprehend relatively exclusive activities so
long as no one else was making an attempt to use the property?  Why
should the court here, as it plainly does, aid the landowners in stealing
the commonly owned land?

Readers are encouraged to respond to or criticize this posting.

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