Daily Development for
Tuesday, December 22, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; PERMISSION; LAWN MOWING: Tending a lawn, including seeding and mowing, on neighbor's property can constitute continuous hostile adverse possession in Pennsylvania.

Brennan v. Manchester Crossings, Inc., 708 A.2d 815 (Pa. Super. 1998).

The lower court had held that the claimant's use of the property was not sufficiently hostile because the record owner had "implied" his consent to the claimant's use of the disputed tract. The Superior (appeals) court disagreed, ruling that the simple fact that the record owner acquiesced in the claimant's use did not indicate that affirmatively granted permission. While the record owner may not have cared whether the claimant used his land, he had never expressly objected.

Further, the act of surveying the property, standing alone, was not sufficient conduct by the record owner was not sufficient to break the continuity of the claimant's possession, especially when there was no evidence to suggest that the claimants were even aware that the survey was being performed.

Comment 1: The courts are split about whether simple lawn mowing can constitute adverse possession. In many cases, the courts, like the trial court here, assume that the true owner in fact is simply being an accomodating neighbor where the next door resident, as here, mows beyond his boundary on property that is more convenient and helpful for the next door resident to mow than for the true owner. Here the true owner was a farmer, had no lawn in the area, and the lawn in dispute was adjacent to a residence occupied by the claimant. The appeals court refers to a number of Pennsylvania lawn mowing cases in support of its conclusion reversing the trier of fact on what would appear to be a factual issue.

Comment 2: The editor disagrees. Where an owner observes his neighbor making a trespassory but inoffensive use of owner's property, and that use does not exclude the owner from access or otherwise permanently alter the character of the property, why should we assume that the owner should view the use as a "challenge to title?" Where a neighbor crosses over a boundary, but makes uses of the crossover property for nothing more than landscape tending, what public policy is servied by viewing this conduct as a "claim of ownership" that ripens into title when sustained for a set period of time?

Comment 3: This case, like many the editor has confronted over the years involving similar facts, strikes the editor as at best a case for a prescriptive easement as opposed to title by adverse possession. At least then the true owner is not surrendering mineral rights, valuable open space necessary for further required setbacks, or other characteristics of ownership that clearly were not being challenged by the landscaping conducted by the claimant.

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