Background
In 1978, Lula Mae Grooms purchased a house at 126 Estelles Lane in Amherst County. Over the next two decades, Lula and her family built several structures that extended—unknown to them—onto the adjoining lot: a kitchen-and-den addition (built 1993–94), a carport (2001–02), a shed used for seasonal storage and as a smokehouse, and a metal gazebo used every Sunday after church and for family gatherings. The family used the carport daily, excluded others from all the structures, and never sought anyone’s permission to do so. Lula died in 2014, and her four children—Kathy Bennett, Shelly Smith, James Grooms, and Kenneth Haynes—inherited the property as tenants in common. Smith and James continued to live on the property.
In 2015, Lucy Alexander moved in next door at 127 Estelles Lane. For eight years she repeatedly asked the Bennetts to walk the property line with her; they refused. In June 2023, Alexander commissioned a formal boundary survey that revealed encroachments: the house by 2.7 feet, the carport by 17.5 feet, the shed by 9.5 feet, and the gazebo by 10.8 feet. Alexander sued for ejectment and quiet title. The Bennett parties countered with an adverse possession claim. At a jury trial in March 2025, each family member testified they had not known the structures encroached, that they used them exclusively as their own, and that Lula had walked the property with Bennett after her father’s death and identified all structures as being on their side of the line. The jury—instructed on both “possession by mistake” (which negates hostility) and the “definite and positive intention” standard (which does not)—returned its verdict for Alexander. The Bennett parties moved to set aside the verdict; the trial court denied the motion. The Court of Appeals reversed and remanded for entry of judgment for the Bennett parties.
The Court’s Holding
Writing for the panel, Judge Raphael held that the Bennett parties established all five elements of adverse possession as a matter of law under the Virginia Supreme Court’s decision in Quatannens v. Tyrell, 268 Va. 360 (2004). Virginia requires clear and convincing proof of actual, hostile, exclusive, visible, and continuous possession under a claim of right for the statutory 15-year period. The only contested element was hostility. Applying Quatannens, the court reiterated that when a claimant “mistakenly believes that a particular ‘line on the ground’ represents the extent of his or her own land and treats all the land within the line on the ground as his or her own in a manner that satisfies the other requirements of adverse possession,” the hostility requirement is generally satisfied. A subjective disclaimer that the claimant did not intend to take land belonging to a neighbor is “irrelevant and serves only to confuse ideas”; what counts is the definite and positive intention to claim the land up to a particular, visible line on the ground.
The record here was uncontroverted: three family members testified they used the carport, shed, and gazebo to the exclusion of others, without anyone’s permission, in the firm belief that the structures were on their side of the boundary. Just as in Quatannens, that mistaken belief did not negate hostile intent because the family had “a definite and positive intention to occupy, use, and claim the land—so much so that [Alexander] believed that [they] owned the land.” The court reversed the jury verdict and directed entry of judgment for the Bennett parties as a matter of law. The opinion also addresses two procedural questions of interest to appellate practitioners: (1) a party that fully briefs its position in a post-trial motion to set aside a verdict need not repeat those arguments in the endorsement of the final order to preserve the issue on appeal (Code § 8.01-384(A)); and (2) a trial court’s electronic audio recording of proceedings, certified in accordance with Code § 17.1-128, is a valid substitute for a court-reporter transcript. This opinion is not designated for publication. See Code § 17.1-413(A).
Key Takeaways
- Under Quatannens v. Tyrell, 268 Va. 360 (2004), a claimant who occupies land under an honest mistake about the boundary line satisfies the hostility element of adverse possession if the claimant had a “definite and positive intention to occupy, use, and claim the land” up to a particular, visible line on the ground—even without any intent to take land actually belonging to a neighbor.
- A subjective disclaimer of intent to encroach is “irrelevant and serves only to confuse ideas”; long-standing, open, exclusive use of a structure to the exclusion of others, without permission, demonstrates the requisite hostile intent as a matter of law when the other Quatannens factors are satisfied.
- Under Code § 8.01-384(A), a party that fully briefs its objection in a motion to set aside a verdict preserves that objection for appeal; it need not repeat the argument in the final-order endorsement, and endorsing the order as “seen and objected to” does not constitute a waiver.
- A trial court’s own electronic audio recording, certified under Code § 17.1-128, constitutes a valid trial transcript; litigants are not required to arrange for a separate court reporter to preserve the record.
Why It Matters
Adverse possession claims arising from structural encroachments are common in Virginia, particularly as older neighborhoods undergo boundary surveys for the first time in decades. Bennett v. Alexander reinforces the rule from Quatannens—that a good-faith mistake about the property line does not defeat hostile possession—and applies it to reverse a jury verdict as a matter of law, which is a meaningful threshold. Real estate practitioners advising clients in boundary disputes should recognize that long-standing, open, exclusive use of a structure, even one built by mistake, will generally satisfy the hostility element once the claimant demonstrates the definite and positive intent to treat the land as their own up to a visible physical line. Practitioners should document the consistency and exclusivity of use and preserve the testimony that the claimant walked the property and identified all structures as lying within their perceived boundary.
The preservation ruling under Code § 8.01-384(A) is also a practical reminder for trial and appellate counsel: a thorough motion to set aside a verdict—here, 19 pages—preserves all arguments raised in that motion without any need to replicate them in the final-order endorsement. The separate ruling on audio-recording transcripts clarifies that trial courts throughout Virginia can rely on their own electronic recording systems, and parties in courts that routinely use such systems need not arrange for independent court reporters to preserve trial testimony.