Veldhuis v. Abboushi, Record No. 0776-22-4 (Va. Ct. App. May 9, 2023)
This opinion discusses the exclusive possession element of an adverse possession claim.
Facts. In 1996, Kye and Tarek Abboushi bought property at 4401 Kirchner Court. Joseph Carroll lived next to them at 4400 Kirchner Court. The Abboushis did not get a land survey to establish their property’s boundaries, but Carroll told them that the property line ran from the western edge of their driveway to the east side of a pine tree located at the back of their property. All parties treated that line as the boundary. The Abboushis immediately planted a garden, set up a privacy lattice, and constructed a short stone wall to the east of the boundary. They regularly gardened and maintained the area. In the mid- to late- 2000s, Carroll needed to install an underground pipe along the edge of the Abboushis’ driveway, so he asked their permission to do so; they consented.
In 2009, Carroll passed, and his daughter Nancy Veldhuis inherited his property. Veldhuis and her husband moved onto the property and continued to recognize the line pointed out by Carroll in 1996 as the boundary between their and the Abboushis’ properties.
In 2020, the Abboushis filed a complaint against Veldhuis for adverse possession, seeking to establish the line pointed out by Carroll in 1996 as the boundary between the properties. Veldhuis counterclaimed for trespass, asserting that the pipe her father laid meant that the Abboushis claim on the area was not exclusive. After a bench trial, the court found for the Abboushis, finding that the pipe was installed only with the Abboushis’ permission. Veldhuis appealed.
Issue. Whether the installation of the pipe defeated the Abboushis’ claim of exclusive possession.
Holding. The Abboushis gave Carroll permission to install the pipe in the disputed area, therefore his use of the property was as a licensee or invitee and did not affect the Abboushis’ exclusive possession.
Notes. To establish title by adverse possession, a claimant must prove “actual hostile, exclusive, visible, and continuous possession under a claim of right” for a period of fifteen years. Possession is not exclusive if it is in common with others, but it is also a property owner’s right to grant or deny access to their land. Here, the fact that the Abboushis granted Carroll permission to install the pipe in the disputed area is dispositive as it showed their claim of right over the area. That Carroll sought their permission only supports their claim of right.