Iowa Court of Appeals Says that Permissive Use Can Become Hostile

March 27, 2014 | Kristine A. Tidgren

Hutchins v. Hutchins, No. 3-1198, 2014 Iowa App. LEXIS 280 (Iowa Ct. App. Mar. 26, 2014)

The Iowa Court of Appeals has ruled that adverse possession can be established, even if the possessor of the property came to the property with permission.

Facts of the Case
This family dispute arose over a plot of land occupied by the widow of the defendant’s son. In 1987, the defendant and his wife invited their son and his wife (the plaintiff) to move onto their 10-acre property and build a home. The plaintiff and her husband moved a manufactured home onto the acreage and treated three acres of the property as their own, planting a large fenced garden and orchard, erecting a two and one-half car garage, pouring sidewalks, and constructing a garage apron. Beginning in 1999, the couple paid real estate tax on the property. The plaintiff’s husband died in 2005, and the plaintiff continued to live on the property and to maintain it. In 2011, the defendant, her father-in-law, served her with a notice to quit tenancy. She responded with a petition to quiet title in the acreage by virtue of adverse possession. She also sought a prescriptive easement for continued use of a driveway and well she shared with the defendant.

After a trial, the district court ruled in favor of the plaintiff, find that she had established her claims for adverse possession of the acreage and a prescriptive easement for the driveway and well. On appeal, the court of appeals affirmed.

The defendant and his wife died while the action was pending. Their son (the plaintiff’s brother-in-law) was substituted as the defendant. On appeal, the defendant argued that the district court erred in finding that the plaintiff obtained title to the property by adverse possession because permissive use can never satisfy the “hostile” requirement. The court disagreed, finding that where, as in this case, the possessor shows substantial maintenance and improvement of the land, hostility can be shown. Relying on the list of improvements the plaintiff and her husband made to the property, the court found that the plaintiff’s possession of the property was hostile and that she possessed it under a claim of right. The court stated that she proved her “intention to hold title exclusive to all other titles or against the world.” The court also found that the plaintiff had established that her use of the well and driveway was the type of possession that would “characterize an owner’s use.” She had thus established a prescriptive easement. As with any easement, it did not need to be exclusive.

Although the result in this case seems equitable, the court glossed over the permissive use argument, citing a case with no issue of permissive use for the proposition that “certain acts, including substantial maintenance and improvement of the land, can support a claim of ownership and hostility to the true owner.”  That’s a stretch.  It is established Iowa law that “permissive use of land is not considered adverse or under a claim of right.”  The hostility requirement of adverse possession (which is the legal issue that this case involved) cannot be met if possession is initially permissive.  The only way that an initial permissive use can become adverse (i.e., hostile to the true owner) is if the owner explicitly revokes permission or the possessor announces that he is ousting the true owner and claiming the property as his own.  Neither of those elements was present in the facts of the case.

It is also Iowa law, however, that a permissive use may ripen into a prescriptive easement where "the party claiming the easement has expended substantial amounts of labor or money in reliance upon the servient owner's consent or his oral agreement to the use." Although the court applied this principle to adverse possession, rather than to a prescriptive easement, both findings seem supportable on an estoppel theory.  So the lesson from this case is that if a true owner watches someone else expend substantial amounts of money to improve the owner’s property, the owner cannot sit by indefinitely reaping the rewards of the improvements. To avoid adverse possession, the owner has 10 years to assert his rights. After that, the courts will no longer hear him complain. 

While the court’s analysis is somewhat imprecise, the result is acceptable based on equity.