Background
Alan and Carolyn Kortmeyer owned lot 27 in a Seward County subdivision. A 2021 survey showed that an approximately 7-foot strip the Kortmeyers had treated as part of their property was legally part of adjacent lot 26, owned by Alyssa and Carey Hendrix through their corporations. The Kortmeyers had performed routine yard maintenance on the strip beginning in 1990 and added a flower garden, retaining wall, trees, fence, and decorative arch beginning in 2003.
The Kortmeyers acquired a mobile home on lot 26 and, according to their trial testimony, paid rent for that lot from at least 2010 through 2021. They sued in 2023 to quiet title to the disputed strip through adverse possession and sought declaratory and injunctive relief. The district court rejected their claims and quieted title in the Hendrixes. The Court of Appeals affirmed, and the Nebraska Supreme Court granted further review.
The Court’s Holding
The Nebraska Supreme Court affirmed. Reviewing the equitable action de novo, it held that the Kortmeyers’ possession did not become notorious until 2003 at the earliest. Their mowing, weeding, and tree trimming from 1990 to 2003 amounted only to routine yard maintenance, which was insufficient to notify a titleholder of an adverse claim. The improvements begun in 2003, by contrast, were sufficiently visible and substantial to make possession notorious.
The court further held that the Kortmeyers’ possession ceased to be hostile and became permissive in 2010, when they began renting lot 26. Because the surveyed strip was part of lot 26, the rental encompassed it, and a tenant cannot deny the landlord’s title while occupying the premises. The 2013 Court of Appeals memorandum opinion characterizing earlier payments as compensation for services did not preclude litigation of the rental issue because the Hendrixes were neither parties to that action nor in privity with the subdivision’s former owner. The period from 2003 to 2010 fell short of Nebraska’s required 10 years of adverse possession.
Key Takeaways
- Routine mowing, weeding, and tree trimming, without more, are not sufficiently notorious to establish adverse possession.
- Visible improvements that appropriate land to a useful purpose may establish notorious possession, but every adverse-possession element must continue for the full 10-year statutory period.
- Renting the parcel containing the disputed land made the occupants’ use permissive and ended any hostile claim of ownership.
Why It Matters
The decision clarifies the line between ordinary yard maintenance and conspicuous acts that notify an owner of an adverse claim. A claimant’s belief that the land is theirs—even if others share that belief—does not replace the required objective proof of open and notorious possession.
The ruling also underscores that a later landlord-tenant relationship can interrupt an adverse-possession period when the leased parcel includes the disputed land. Prior litigation will not bind a subsequent owner through issue preclusion without the required party identity or privity.