What is adverse possession in real estate?

Imagine you’ve owned a beautiful, wooded plot of land for decades, intending to one day build a quiet retreat. However, because life gets busy, you haven't visited the far edge of the property in years. One day, you arrive to find a neighbor has built a sturdy shed, put up a fence, and even planted a thriving vegetable garden on your land. If they’ve been doing this openly for a long time without your permission, they might be on their way to becoming the legal owners through a process called adverse possession.

Often referred to as “squatter’s rights,” adverse possession allows a trespasser to claim ownership of a property if they meet specific legal requirements. If you want to ensure full ownership of your property, it's important to learn more about the requirements, impact, and prevention options for adverse possession.

Key takeaways:

• Adverse possession allows someone who continuously occupies and possesses land to claim legal ownership under specific conditions.
• You can prevent adverse possession claims by monitoring your property and establishing clear boundaries.
• For a claim to succeed, it must typically be open, notorious, hostile, actual, exclusive, and continuous.
• If you suspect an adverse possession claim, contact law enforcement and consult a legal professional.

Why do adverse possession laws exist?

While adverse possession laws may seem unfair at first, they actually serve a real purpose in a community. Adverse possession helps avoid neglected or unmaintained land and rewards those maintaining and cultivating a property. It also rewards vigilance on behalf of the property owner to be responsible and aware of what’s happening on their land.

Adverse possession also prevents “stale” claims and assists with fixing property title disputes. Since an aspect of adverse possession is hostile possession of land for a set statutory period, this prevents original property owners from bringing forward claims of ownership over a property despite no desire to maintain or use the property for years. However, if a neighbor has unknowingly been using another’s land for years due to incorrectly drawn property lines, adverse possession can be used to update these property lines to formally deliver ownership to whoever has been maintaining and caring for the land.

Adverse property rights are very real and can significantly impact your ownership interest in a property. By understanding how this works, you can better protect your investment and ensure your bundle of rights remains intact.

What are the main requirements for adverse possession?

For a trespasser to successfully claim possession, they need to do more than simply set foot on the property and say they own it. While every state has nuances, there are five nationwide key requirements to claim adverse possession: open and notorious possession, hostile occupation, actual possession, exclusive control, and continuous use.

Open and notorious possession

It needs to be clear that the trespasser is in possession of the property. The trespasser can’t hide their presence or keep the occupation of the land a secret – it needs to be out in the open for anyone who is paying attention to see.

The trespasser's use must be notorious, which means the community would reasonably believe the trespasser is the owner because they are acting like one. The legal owner doesn’t need to be aware of a notorious possession for it to meet legal requirements. If you're unsure of your own boundaries, it's a good idea to find out who owns a property nearby to clear up any confusion.

Hostile occupation

In a legal sense, "hostile" doesn’t mean there’s a fight or a confrontation. It means the person is using the land without the owner's permission and in a way that infringes on the owner's property rights. If the owner allowed the trespassing and gave permission, there can’t be a claim because the trespasser’s use isn’t hostile.

Actual possession

The trespasser must actually be using the land. This can mean living on the land or in the house, or working in the fields on the property they’re claiming possession of. The trespasser can support their claim by documenting their efforts to make capital improvements upon the land. Improvements can include tending to a garden or making significant repairs on the property.

Exclusive control

The trespasser must have exclusive possession of the property or share it with other trespassers, and they must act as if they’re the legal owners of the property. The legal owners need to be excluded from using the property. For example, if two people both use a wooded lot for walks, one can't claim adverse possession, because the property isn’t exclusively used.

Continuous use

The trespasser must occupy the land for a specific, uninterrupted length of time outlined in state law and known as the statutory period. If the trespasser leaves the property before the statutory period is over, they must restart the clock on their claim of adverse possession.

Continuous means the use is regular and uninterrupted. It doesn’t mean the trespasser must remain on the property 24 hours a day, 7 days a week. For instance, the possessor can leave the property to get groceries and still fulfill the continuous use condition, but abandoning the property for 2 years and then returning would not satisfy the requirement.

How do adverse possession rules vary by state?

While the five pillars above are standard, the fine print depends entirely on where the land is located. Some states are much stricter than others.

For example, many states require the trespasser to have paid property taxes on the land during their occupation to prove they truly believed they owned it. Others require that the claimant make significant improvements to the land.

The statutory period is the biggest variable. It’s wise to be familiar with the specific statutes in your state to better understand your local protections. Here’s an example of how the statutory period varies in just a few states:

Real-world examples of adverse possession

To help you better understand adverse possession and how it works, let’s look at some examples in the real world.

Home with an attached garage on the neighbor’s property

Say you buy a house with an attached garage that was built on your neighbor’s property. The structure was built more than 40 years ago, so the neighbor has been aware of this encroachment for a long time.

As a new owner, the statutory period doesn’t have to restart when you buy the property. This means you can claim that the trespass began when the garage was built. Since 40 years have passed (the typical statutory period), the neighbor-owner has forfeited their ownership of the property.

Property that includes a neighbor’s garage

Using a reverse of the above scenario, let’s say you buy a property where the neighbor’s garage was built on your land more than 40 years ago. Can you challenge your neighbor’s right to ownership?

Aside from nicely asking your neighbor to remove the garage, there’s likely nothing you can do in this situation. The trespasser has completed the statutory period, and property rights have been vested. If you sue and the court finds an adverse possession claim, that makes it official, and the title would be updated to reflect the change.

Hopefully, this usage will be disclosed before you complete a real estate transaction. A title search is required to ensure that buyers are aware of any conflicting ownership interests before purchasing a home.

Garden on a family member’s property

Let’s say you live next door to your in-laws and you’ve created a garden that extends onto their property. You’ve taken care of the plants for years, and everyone is aware that it’s your garden.

At first glance, this may seem like a successful claim. However, some courts have ruled that adverse possession between family members won’t succeed because of implied consent. Because it’s between family members, the property owner may not mind if their relative borrows the land, so it doesn’t meet the hostile occupation criteria.

How to prevent adverse possession

If you want to ensure ownership over your land, taking steps to address trespassers and prevent adverse possession claims is vital. The best way to deal with adverse possession is to stop it before it starts. Being a proactive homeowner is your best defense against losing portions of your land.

• Clearly mark boundary lines: Use fences, hedges, or markers to show exactly where your land ends and the neighbor's begins.
• Inspect for trespassing: Regularly walk your entire property, especially the edges, to look for signs of unauthorized use.
• Use “No trespassing” signs: These provide a clear visual cue that you are asserting your rights over the land.
• Maintain property records: Keep copies of your deeds, surveys, and tax receipts in a safe place.
• Get legal advice: If you notice a neighbor building something on your land, speak with a real estate attorney immediately.
• Contact law enforcement: If someone refuses to leave your property, you may need to involve the authorities to document the trespass.
• Negotiate permissions: Sometimes, giving a neighbor written permission to use your land can stop an adverse possession claim because the use is no longer "hostile.”
• Consider renting the property: Similar to granting permission, you may get the trespassers to sign a lease to rent the property. This could also help prevent a trespasser from making an adverse possession claim.

What happens if the trespasser proves their claim?

If a trespasser proves adverse possession by meeting all the requirements, the legal house title will be officially updated. Property rights will be transferred to the trespasser, and they will now own the property’s legal title. They can use or dispose of it as they choose, and the trespasser doesn’t legally have to pay the previous owner anything.

How can a property owner defend their rights?

If you find yourself facing a claim, don't panic—there are ways to fight back. You can file a lawsuit for trespass or serve a cease and desist letter against the encroaching party. Another option is to initiate what's called a quiet title action. This is a legal process asking a court to declare official ownership of a disputed property, ending potential adverse possession claims.

Adverse possession vs. prescriptive easement

A prescriptive easement is another way someone can gain legal access to someone else’s land, but the extent of the use differs. A prescriptive easement occurs when a trespasser meets the open and notorious criteria discussed above. They don’t need to possess the property, but they do need to use it.

An example of a prescriptive easement would be if children used a path through your property to reach school. If they've been doing this openly for years and you’ve noticed but never stopped them, they will likely be able to obtain a prescriptive easement to continue using that piece of land in the same way. They won’t gain title or ownership of the land, just the right to continue using it.

FAQ about adverse possession

If you’re still working to wrap your head around adverse possession, check out some of the frequently asked questions below to learn more.

How do squatter’s rights differ from adverse possession?

"Squatter's rights" is a colloquial term often used to describe the early stages of adverse possession. While a squatter is simply someone living on land without permission, adverse possession is the legal process they must complete to actually gain the deed to that land.

Can I claim adverse possession if I’m a renter?

Generally, no. When you rent a house, you have a signed agreement that gives you permission to be there. Because your presence isn't "hostile" (you have the owner's consent), the clock for adverse possession never starts ticking.

Can a homeowners association block my right to assert adverse possession?

One of the main functions of a homeowners association is to mediate disputes between neighbors. For this reason, the HOA may restrict members from suing each other. If you decide to sue to establish adverse possession, know that you might be unable to take the case to court.

The bottom line: Avoid losing your property to adverse possession

There are a lot of requirements a trespasser must meet to claim adverse possession. While these situations may seem far-fetched, it’s important to be vigilant so you can prevent a potential claim. Posting private property signs and watching for trespassers is your first line of defense. If the issue is persistent or ongoing, seeking legal help promptly is crucial to avoid an adverse possession claim.

If you’re currently dealing with an adverse possession or encroachment situation, consider contacting a real estate attorney about the next steps.

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