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Adverse Possession: What Property Owners Need To Know

Erica Gellerman4-minute read

October 08, 2020

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There are a lot of things to be concerned about as a property owner. One of the lesser-known risks is that of adverse possession. In this article we’ll cover what adverse possession means, along with the requirements for such a claim to be successful.

What Is Adverse Possession?

Adverse possession is a legal doctrine that allows a trespasser to claim ownership rights of a property. It’s also sometimes referred to as “squatters’ rights,” though that’s not the legal term.

The policy that supports adverse possession is that the land should be productive and that if a landowner is absent or oblivious, the person using the land (and meeting all criteria) should have the right to own it.

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Elements Of Adverse Possession

There are certain elements that must be met for a trespasser to claim adverse possession. In addition to the elements below, state-specific requirements also exist. Some states require that the trespasser be current on property taxes. And all states mandate different lengths of the trespass, also known as the statutory period. The statutory period ranges from 5 years in California to 30 years in Louisiana.

The general elements of adverse possession include:

Open

It needs to be clear to anyone who looks that the trespasser is in possession of the property. No hiding in the shadows or keeping the trespassing a secret – it needs to be out in the open for anyone who is paying attention to see.

Notorious

Similar to the criteria of open, the trespasser’s use of the property needs to be notorious. That means that if someone in the community was asked who owns the property, they would answer that the trespasser owned the property.

Hostile

No, the trespassing doesn’t need to be malicious or unfriendly. But the trespassing does need to be done in a way that infringes on the owner’s rights, without permission. If the owner allowed the trespassing, there can’t be an adverse possession claim as it’s not hostile.

Actual

If a trespasser isn’t actually living on the land or the property that they are trying to take in an adverse possession, they don’t meet the criteria of actual. To make an adverse possession claim, they must be living on the land, living in the house, or working in the fields, for example.

Exclusive

The trespasser must have exclusive possession of the property (or share it with other trespassers) and act as if they are the actual owners of the property. The legal owners need to be excluded from using the property.

Continuous

The trespasser must maintain continuous use of the property during the state’s statutory period. If they quit the property before the statutory period is completed, they need to restart the statutory period before they can claim adverse possession.

What Happens If The Trespasser Proves Their Claim?

If the trespasser is successful in making an adverse possession claim, property rights legally transfer. The trespasser will own the property title and they can use or dispose of it as they choose.

Adverse Possession And Easements

A prescriptive easement is different from adverse possession. Yes, they’re both a way to gain access legally to someone else’s land, but the extent of the use is different. A prescriptive easement occurs when a trespasser meets the criterion above open and notorious. They don’t need to possess it, but they do need to use the property.

An example of a prescriptive easement would be if school children used a path through your property to reach school. If they have been doing this openly for years and you’ve noticed but never stopped them, they likely will be able to receive 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.

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How Do I Protect My Property From A Claim Of Adverse Possession?

If you find that your property is being used by someone else, one easy way to protect yourself from adverse possession is to give the trespasser permission to use your property. This defeats the criteria of hostile ownership. Be sure to give them permission in writing.

If you don’t want to give them permission, you likely need to get law enforcement involved and work with a lawyer to handle the situation.

Adverse Possession In Real Life

Not sure how adverse possession will affect different situations? Here are some real-life scenarios:

I Just Bought My Home, But The Previous Owner Built His Garage On The Neighbor’s Property 40 Years Ago. Did The Statutory Period Begin Anew When I Moved In?

As a new owner, the statutory period doesn’t have to restart when you purchased the property. A new owner can claim that the trespass began when the garage was built. 40 years is past the statutory period, so the neighbor-owner has forfeited his ownership of the property.

I Just Bought A House And Found Out That The Neighbor Built His Garage On My Property 40 Years Ago. What Can I Do?

Aside from asking nicely, there’s likely nothing that you can do in this situation. The trespasser has completed the statutory period and property rights have vested. Know that if you sue and a claim of adverse possession is upheld, the trespasser’s right would be formally recognized and recorded as part of the title.

I Live On Property Adjoining My In-Laws And I’ve Planted My Garden On Their Land Every Year For The Past 50 Years. Can I Claim That Land As My Own?

At first look, this might be a successful claim. But some courts have ruled that adverse possession between family members won’t be successful 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 criteria.

Can A Homeowners Association Block My Right To Assert Adverse Possession?

One of an HOA’s main functions is to mediate disputes between neighbors. For that reason, they may restrict an owner’s right to sue their neighbor. You may not be successful in disputing that restriction because you’ve agreed to abide by those rules and the neighbor could reasonably expect to not be sued, citing protections of HOA rules.

Summary: Pay Attention To Your Property To Avoid Losing It

There are a lot of requirements for a trespasser to claim adverse possession. While these situations may seem far-fetched, it’s important to pay attention to your property to avoid losing it. The statutory period may seem long, but years can pass quickly without noticing.

If you’re buying property, make sure you are educated on this and other issues. Our home buying resources help you learn more about buying property here.

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Erica Gellerman

Erica Gellerman is a CPA, MBA, personal finance writer, and founder of The Worth Project. Her work has been featured on Forbes, Money, Business Insider, The Everygirl, The Everymom and more.