First of all, we need to discuss the difference between (1) adverse possession and (2) easement
Adverse possession is when someone takes over the TITLE of the land (as well as the land) through squatting
. This would entail living on the land as a whole and claiming title. This is called "taking the fee." Adverse possession indicates that the interest claimed is in fee (title). Russell v. Pare, 132 Vt. at 401, 321 A.2d at 81; Barber v. Bailey, 86 Vt. 219, 223, 84 A. 608, 611 (1912). In short, adverse possession does not apply here
Easement by prescription is when someone takes over a PART OF THE LAND but not the whole thing, by squatting. "The term "prescription" applies to the acquisition of nonfee interests" (no title). COM. FEED STORE v. Northeastern Culvert, 559 A. 2d 1068 - Vt: Supreme Court 1989
. This is what is in question here
. So they are simply attempting to claim a slice of the land.
The elements necessary to establish a prescriptive easement under Vermont law: an adverse use or possession which is open, notorious, hostile and continuous for a period of fifteen years
, and acquiescence in the use or possession by the person against whom the claim is asserted. v. Pare, 132 Vt. 397, 401, 321 A.2d 77, 81 (1974); 12 V.S.A. § 501
Did you see the 15 year requirement? That means that they would have to have had that fence there for 15 years before they could claim an easement by prescription. So if they or their attorney told you they are claiming averse possession or an easement by prescription, they are hoping you would not call them on their bluff, as this is FALSE.
At this point, they are simply trespassing. One can initiate an action for the trespass and nuisance
in Court and have them removed.
Ergo:If a neighbor of mine in Vermont owns a home partially on my property for 35 years, I know they can claim the property by adverse possession.
Not so; see above.My questions is, can they continue to build other structures now? They have already violated local zoning ordinances creating illegal structures
Since they cannot claim adverse possession or easement by prescription, they cannot be building and may be made to leave via court order. Frankly, in theory, their building on one's property may be razed even without a court order via self-help, but it is best to have the court's backing first.
I hope this helps and clarifies. Good luck.
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