Two Nebraska rulings on who owns the strip you have been mowing
Two Nebraska rulings on who owns the strip you have been mowing
2026-09-12 · Nebraska · Courts
The Nebraska Supreme Court decided two subdivision boundary cases in 2026, one won and one lost, and between them they state the rule an association needs before it ignores an encroachment onto common ground. Both are published; neither involves an association as a party; both are directly on point for one.
The case that won: Goldie v. McNeil & Co. Builders
Decided March 27, 2026, 321 Neb. 84, opinion by Chief Justice Funke, affirming the Douglas County District Court.1 Homeowners on a lot in Rose Garden Estates took title by adverse possession to a forty- to fifty-foot strip of adjacent builder-owned lots. Their conduct since 1989: mowing, fertilizing, caring for trees, recreational use, and a fence.
The builder argued the use had been permissive. The court's published headnote on what counts as open and notorious does a lot of work here:
“Although the enclosure of land renders the possession of land open and notorious… it is not the only way by which possession may be rendered open and notorious. Nonenclosing improvements to land, such as erecting buildings or planting groves or trees, which show an intention to appropriate the land to some useful purpose, are sufficient.”1
On permission: “Permissive use of property can never ripen into title by adverse possession unless there is a change in the nature of possession brought to the attention of the owner in some plain and unequivocal manner that the person in possession is claiming adversely thereby.”1
There is a detail in the facts worth pausing on: the owners learned of the boundary problem at a homeowners association meeting in 2022.
The case that lost: Kortmeyer v. Hendrix
Decided August 28, 2026, 322 Neb. 102, on petition for further review granted, affirming the Court of Appeals and the Seward County District Court.2 Owners of lot 27 in a Seward County subdivision claimed roughly seven feet of lot 26, revealed by surveys in 2021. They lost.
The Court of Appeals decision below put the failure precisely: “The Kortmeyers failed to prove by a preponderance of the evidence that their possession of the disputed property became notorious before 2003. Further, the Kortmeyers failed to prove that they maintained a hostile claim of ownership over the disputed property after 2010.”3
Read the two together and the Nebraska rule is about evidence rather than doctrine. Ten years of exclusive, continuous, notorious, adverse possession under claim of ownership takes the land. What separated these two outcomes was whether the claimants could establish when the character of their use changed, and whether it stayed that way.
Why an association is exposed to this and a homeowner is not
Common ground is the association's most encroachable asset, for structural reasons:
Nobody lives on it. An owner notices a neighbour mowing into their back yard. An association notices nothing, because no one is standing there. The outlot behind a row of houses is observed only by the people encroaching on it.
Boards turn over. A ten-year possession period spans three or four boards. Institutional memory of what was permitted in 2016, and by whom, generally does not survive that.
The improvements look like maintenance. Mowing the strip behind the fence, planting a row of trees, extending a garden bed, putting in a play set — every one of those reads as a tidy neighbour and every one of them is, under Goldie, a nonenclosing improvement showing an intention to appropriate the land to a useful purpose.
A Nebraska board's practical options
Walk the boundary and photograph it, with dates. An annual walk of the common-area perimeter, with dated photographs, costs an afternoon. It is also the evidence that establishes when a use began, which is precisely what the Kortmeyers could not prove and what a future claimant would have to overcome.
Grant permission in writing, and keep it. This is the single highest-value action available. Permissive use cannot ripen into title unless the possessor plainly and unequivocally changes the nature of the possession and brings that to the owner's attention. A short written licence — the association permits this owner to mow and maintain this described area, revocable at will, creating no property right — converts a ripening adverse claim into a permissive one. An oral understanding between a board member and a neighbour in 2014 does not survive either of their departures.
Do not assume a recorded plat protects you. Both of these disputes were between record owners with plats and surveys. Adverse possession operates against record title; that is the entire point of it.
Deal with the fence before the decade runs. A fence built on common ground starts a clock the association cannot stop by discovering it in year eleven.
What to watch next
Watch for the first Nebraska appellate case applying Goldie where the record owner is an association rather than a builder. The doctrine is settled; what is untested here is how a court weighs an association's institutional inability to observe its own land. Nothing in Goldie suggests that inability is a defence.
Related Nebraska HOA Topics
Stay on top of Nebraska HOA law
Every week: new Nebraska legislation, court rulings, and regulatory developments affecting condos, planned communities, and property managers. Free.
No spam. Unsubscribe anytime.