Recovering Attorney Fees in Adverse Possession Cases

June 1, 2009 | Erin Herbold


In this case, two neighbors disputed the location of the boundary line between their properties.  The parties had previously agreed that the defendant would sell a portion of his property to the plaintiff.  When the defendant conducted a survey, it indicated that the boundary line was where he understood it to be (defendant called this Parcel A).  The plaintiff, on the other hand, understood that the parties had an agreement that the northern boundary of the property was located where a fence stood.  The problem here was the plaintiff’s understanding of where the boundary line was located meant that the boundary line encroached on land the defendant thought he owned.  Subsequently, a transfer of Parcel A was completed when the defendant sold the land to the plaintiff.

Subsequently, the plaintiff installed a septic system on the parcel.  When the defendant attempted to farm what he believed to be his land, the plaintiff demanded that he not farm over his newly installed leach fields.  The plaintiff sued, and the trial court ruled that the survey indicated where the boundary line was and that the defendant was entitled to farm the land.  Upon prevailing, the defendant sought attorney’s fees from the plaintiff, stating that the successful party under the real estate contract signed between the parties was entitled to attorney’s fees.  The court denied this request.

On appeal, the court found that the trial court correctly determined the issue of adverse possession.  Since the defendant’s possession of the land he believed to be his was not exclusive, he could not properly satisfy the requirements to assert title to the disputed area.  However, the plaintiff was able to establish a prescriptive easement for the use of the septic system leach field in the disputed area; because he used the area for the statutory period, and showed that he openly, notoriously, continuously, and in a hostile manner used the land for the statutory timeframe..

As for the issue of attorney’s fees, the court determined that attorney’s fees must be specifically requested at the trial court level, before they may be awarded.  However, it was enough for the court to award appellate attorney’s fees here, since the defendant requested that the suit be dismissed at the plaintiff’s cost.  Iowa Code §625.22 states that attorney’s fees will be taxed as part of the costs rather than as a separate item.  Thus, an award of attorney fees was proper.  Townsend v. Nickell, No. 9-030/08-1058 (Iowa Ct. App., Apr. 8, 2009).