Land Access

• Landshare.net – A now-defunct UK-based site connecting growers to people with land to share. Read here for more on what happened to Landshare.net and alternatives that are available.

Adverse Possession

Adverse possession, sometimes referred to as “squatters’ rights,” is a legal tactic that enables an individual or organization to gain possession of land.

Case Study: Central Club for Boys and Girls

Adverse possession has been a successful tactic for one organization in Philadelphia. The Central Club for Boys & Girls had served as the vacant land steward for eight abandoned lots in South Philadelphia, starting in the 1930s and 40s. Central Club used these lots to create green, garden, and open space for community building and programming and has served as an anchor community institution for over 60 years. In 2010, Central Club was thrilled to gain possession of eight parcels through a quiet title action based on adverse possession.

Unfortunately, gaining title to the land brought with it decades of assessed taxes from prior owners. Facing sheriff’s sale of the property, Central Club, with the Garden Justice Legal Initiative, has won a year’s worth of stay of the sale to allow time to file nonprofit real estate tax exemption applications.

The Legal Requirements of Adverse Possession

To fulfill the legal requirements of adverse possession, an individual or organization must essentially squat on a parcel of land for a requisite amount of time (with or without knowledge that one is squatting).

The requirements vary by state, but most states require the squatter’s use be

• (1) continuous for the statutory period
•  (2) actual
  • considered use of the land as the owner would use it—a use in line with the character of the land.
• (3) open & notorious
  • means the squatter is not concealing his/her use of land.
  • enables the actual owner to see that another is using the property.
• (4) continuous
• (5) hostile and
  • the squatter cannot have permission from the owner.
• (6) exclusive
  • Exclusive use implies that the squatter is treating the property as if it is his/her own, to the exclusion of others.1

Each of the latter five elements must be satisfied throughout the time required by state law.  The squatter cannot abandon the property once s/he begins to adversely possess it.

Statutory Period

• One of the biggest challenges to gaining title through adverse possession
• For example, in Pennsylvania, the statute requires a squatter to meet twenty-one years of adverse possession requirements.  Most statutes require similar lengths of time.
  • Illinois: 20 years
  • Missouri: 10 years
  • Ohio: 21 years
  • Pennsylvania: 21 years
  • Maryland: 20 years
  • Texas: 10 years2
• Many older gardens that have developed into true community assets have been stewarded for many years by a group, making an adverse possession claim easier to fulfill.³

States with More Stringent Requirements

• Not only do states vary in terms of the statutes of limitation, but the legal requirements can be slightly different.
• It is important, therefore, that those looking to adverse possession as a tactic for land tenure regard laws specific to their state
  • Massachusetts, Michigan, New Jersey, and Texas require an “intent to possess” in addition to the elements outlined above.
  • California requires the squatter to pay property taxes for five years
  • New York, Washington, and Oregon require a “claim of right,” or belief that one has rightful claim to the property, in order for the squatter to gain title.4

Conclusion: Pros and Cons of Adverse Possession

• The Central Club story demonstrates that while adverse possession can be a helpful tactic for individuals or groups using otherwise vacant land for many years, it is a complicated process with potentially unanticipated consequences.
  • Pros
    • clear path to land tenure, often less expensive than buying property
    • solution in cities with abundant vacant land, where no policy has prevented the land from continuing to exist unused
  • Cons
    • quiet title actions take time and resources
    • squatters must fulfill many elements for a long period of time
    • prospective and retroactive taxes, as well as other debt on the property may exist
    • the squatter must garden without the permission of the landowner for the statutory period to start, so short-term agreements with the owner do not help an adverse possession claim.

The Written Easement/Lease Agreement 

(For related information, see the Liability, Risk, and Insurance section)

Once you have access to land, you will need to formalize your agreement with the landowner as to the appropriate uses of the land. No matter the arrangement between you and the homeowner, it will be important to put the yard-sharing agreement into writing.  A written agreement will protect both the homeowner and the organization from problems arising from untimely termination of the relationship, responsibilities for caring for the garden, liability, and other concerns.  A written agreement will essentially create a lease or a temporary easement.

Without a written agreement, a variety of things could happen in the event of a dispute.  A court might characterize the arrangement as a right to use land under a “license,” which can be revoked at will.[4]  In this case, the owner of the land could revoke the license at any time.  However, if the garden organization has expended considerable money or time in reliance on the license, a court might prohibit the landowner from revoking without notice. [5]   A court may also look at the arrangement as a “lease.”  When there is no written lease, the court may apply some basic rules of landlord-tenant law, which may include a minimum notice requirement, for example.  In some cities, there may even be a rule that the landlord (the homeowner) cannot evict the tenant (the gardeners) except for “just cause.”   Putting the agreement into writing will help avoid having a court apply any of these default rules.

The agreement will essentially create a free lease or a temporary easement.  There are slight differences between the two.  A lease would give the organization a right to possess the designated portion of the yard.  Leases typically give the lessee exclusive rights to use the land; however, the organization could still draft the lease agreement to allow the homeowner to use the yard.  An easement is a right to use, rather than possess, the portion of the yard.  With an easement, the homeowner still has the right to use his/her yard, but must not unreasonably interfere with the organization’s use of the yard. [6]  An example of unreasonable interference would be intentionally destroying plants.

While either a lease or an easement could be used to create the yard-share arrangement, the circumstances look more like a traditional easement, since it gives the organization a right to use the land, but does not exclude the homeowner.  Creating a lease might subject the homeowner and organization to more rigorous rules of landlord-tenant law, which vary from jurisdiction.  Arranging the yard-share as an easement may give the parties more flexibility to dictate the terms of the agreement.

While an easement cannot be terminated at will, it can be created for a limited time and can be terminated if and when certain conditions are met.  In the case of the yard-share agreement, the easement could be terminated, for example, in the event that the homeowner moves or if the garden goes unattended for three or more weeks.  To terminate the easement, the homeowner and organization should execute another written agreement.  If the easement is created with a written agreement, it cannot be terminated simply with an oral statement of termination.[7]  If the organization proceeds to abandon the property and fails to execute a release deed with the homeowner, termination of the easement can be inferred after enough time has passed to confirm the organization’s intent to abandon it.[8]

As a side note, the easement could also be referred to as a “profit.”  A profit is a privilege to remove a product from the land; a profit could be a right to fish, to graze animals, or cut wood, for example.[9]  However, the arrangement will be treated the same by law whether it is considered an “easement” or “profit.”[10]

Concerns to Address with the Written Lease Agreement/Easement

Concerns of a property owner may include:

• Being able to revoke the agreement under certain circumstances
• Limiting the number of volunteers entering the property and the hours during which they may come
• Receiving a portion of the produce
• Limiting liability for any injuries a gardener might sustain
• Ensuring compensation for any damage done to the property
• Ensuring that the garden is not neglected
• Limiting potential nuisances (noise or parking problems)
• Influencing the design of the garden to ensure that it is aesthetically pleasing

Concerns of the community organization may include:

• Ensuring access to the garden
• Ensuring use of the garden until the end of a growing season
• Verifying that the land is free of hazards
• Agreeing on the homeowner’s portion of responsibility in caring for the garden
• Designating a percentage of the produce that will be given to the organization
• Giving volunteers access to bathrooms
• Gaining access to certain resources, such as water and compost.
• Having a plan for moving plants in the event that the land-share arrangement must be terminated in the middle of a growing season.

Suggested Components of the Written Agreement:

1. What portion of the land will be used and how it will be demarcated?
2. What will or will not be grown there?
3. Who will be cultivating it (volunteers only, or combination of residents and volunteers)?
4. When they will be cultivating it (seasons, days, hours)?
5. Who keeps the produce?
6. Duration of land-share arrangement: a possible arrangement would be a lease that lasts for one planting-harvesting cycle, and that is renewable each year.
7. Situations under which the agreement can be revoked by homeowner.  These might include:
   1. The homeowner moves out of the house.
   2. The organization violates key terms of the agreement, such as neglects the garden.
   3. The homeowner is sued by a homeowners’ association for nuisance related to the garden.
8. Situations under which the agreement can be revoked by organization.  These might include:
   1. The homeowner intentionally damages a substantial portion of the garden.
   2. The organization shuts down.
   3. The organization made good faith effort to keep up garden, but didn’t have enough volunteers/resources, etc.
9. What to do if the agreement is terminated:
   1. Arrangements for moving plants if the agreement is terminated in the middle of the season.
   2. Whether the organization is obligated to restore the yard to its original appearance.
10. What are safety concerns and what will each party do to avoid risk
    1. Access to water for irrigation
    2. Volunteers’ access to bathrooms
    3. A rough agreement as to the design of the garden.

Some additional resources

Success Stories

Morris v. Adams, 903 So. 2d 638 (La. Ct. App. 2005)

• Multiple parties’ parents and grandparents had lived on and farmed the land together over more than thirty years beginning sometime in the mid-20^th century. Their “tacking” of adverse possession from one generation to the next superseded the claim of the couple that purchased the land in 1996

Berry v. Houston, 195 So. 2d 515 (Miss. 1967)

• Two parties, Mrs. Ellett and Mr. Berry, sought to quiet title to Church property, which they claimed to have adversely possessed for more than ten years. Mrs. Ellett won, in large part because her possession was open and exclusive and she marked off the boundaries of the property she was claiming with timbers and fencing. Mr. Berry, on the other hand, lost for failure to establish that his possession of the Church’s property had been exclusive, continuous, or without permission

Vezey v. Green, 35 P.3d 14 (Alaska 2001)

• A woman was orally given property by her grandparents and acted as owner of the property. The Court found that she had gained legal ownership by adverse possession, but there remained a question as to how much of the property she now owned – she would only be given title to the land that she actually possessed.

Law Articles

• Dana May Christensen, Securing the Momentum: Could A Homestead Act Help Sustain Detroit Urban Agriculture?, 16 Drake J. Agric. L. 241, 250 (2011) (detailing the variety of tools that may be helpful in sustaining urban agriculture, including easements and land trusts)

• Jane E. Schukoske, Community Development Through Gardening: State and Local Policies Transforming Urban Open Space, 3 N.Y.U. J. Legis. & Pub. Pol’y 351, 368 (2000) (the benefits of community gardens and different ways to promote the idea)

• Dorothy A. Borrelli, Filling the Void: Applying A Place-Based Ethic to Community Gardens, 9 Vt. J. Envtl. L. 271, 294 (2008) (the benefits of community gardens and different ways to promote the idea, along with examples of unsuccessful attempts)

• Scott Andrew Shepard, Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture of Property and Liberty Interests, 44 U. Mich. J.L. Reform 557, 587 (2011) (putting abandoned property to good use through AP)