Legal Question in Real Estate Law in Illinois
Property Encroachment
I purhased my home in 1992. Soon after, adjoining property owner discovered through survey that a portion of my driveway encroaches upon their property. Through research, including photos and conversation with previous owners, I have found that the portion of property in question has been used as a driveway at least since 1958. Adjacent property owners are now threatening to divide the property with a barrier or type of fence and destroy the portion of driveway that encroaches upon their property. Do the adjacent proprty owners have the legal right to 'reclaim' the portion of driveway that is situated on their property after 'at least' forty-four years? Incidentally, this involves a Pentecostal Church which I believe is exempt from property tax. Also the area in question involves approximately 150 square feet.
1 Answer from Attorneys
Re: Property Encroachment
Your instincts are good ones. There is a concept in real property law known as "adverse possession." The gist of an adverse possession claim is that if one party openly possesses the property of another for a certain period of time, say, 21 years, with the owner doing nothing about it, the property belongs to the adverse possessor.
In order to establish adverse possession of property, the party claiming such possession must prove that he, she or it held such possession "openly," "continuously," "exclusively," "adversely," and "notoriously." If these elements are established for the length of time specified in the statute, which, for Illinois, I believe is 21 years, the property belongs to the adverse possessor.
Given the few facts as you have recounted them, this is a theory that should be explored.
-- Kenneth J. Ashman; Ashman Law Offices, LLC; [email protected]; www.lawyers.com/alo
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