What Is Adverse Possession In Real Estate?

There are a lot of things to be concerned about as a property owner, especially if you’ve recently purchased a home. One of the lesser-known risks is adverse possession. Often called “squatter’s rights,” adverse possession can give trespassers the legal right to take possession of land they don’t own under certain circumstances.

In this article, we’ll cover what adverse possession means, along with the requirements for such a claim to be successful and what you can do to protect yourself from this situation.

Adverse possession is a legal doctrine that allows a trespasser to claim ownership rights of a piece of real estate, as long as they meet the necessary requirements for a period of time specified by the state’s statute of limitations. It’s also sometimes referred to as “squatter’s rights,” though that’s not the legal term.

The real estate law that supports the doctrine of adverse possession notes 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 legal right to own it.

There are certain criteria that must be met for a trespasser to claim adverse possession. Some of the specifics of adverse possession remain constant while some change from state to state.

For example, some state laws require that the trespasser pay and be up to date on property taxes. States mandate varying lengths of trespass, also known as the statutory period. The statutory period ranges from 2 years in Arizona to 30 years in Louisiana.

The general elements of adverse possession include the following conditions:

Open

It needs to be clear to anyone who looks 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.

Notorious

Similar to the criteria of open possession, 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. However, the true owner doesn’t need to be aware of the notorious possession for it to meet legal requirements.

Hostile

Trespassing doesn’t need to be malicious or unfriendly to qualify for adverse possession. But according to Nolo.com, 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 possession of, they don’t meet the criteria of actual possession. For example, to make an adverse possession claim, they must be living on the land, living in the house or working in the fields.

The trespasser can document their efforts of maintaining and improving the land to support their claim. Examples include significant repairs on the property or tending to a garden.

Exclusive

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

Continuous

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

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

A prescriptive easement is different from adverse possession. They’re both ways 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 criteria for 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 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.

To prevent a claim of right through adverse possession, you can take some precautions to help protect your property, such as:

• Clearly marking the boundary lines
• Walking your property lines to check for any signs of trespassing
• Installing “No Trespassing” signs to deter unwanted visitors
• Building a fence around your property or a gate on your driveway

The best way to stop adverse possession is to detect trespassers immediately. The earlier you know, the sooner you can take steps to prevent an adverse possession claim. According to Nolo.com, here are some ways to intervene:

• Contact law enforcement: Reach out to police as soon as possible to help remove trespassers from your land and provide documentation about the incident. The police may also be able to provide resources on the next steps to take in your state.
• Contact an attorney: If the problem with trespassers is recurrent, or they’ve built a shelter or building on your property, reach out to a lawyer right away. Acting quickly is the best way to fight an adverse possession claim.
• Negotiate permission in writing: You may be willing to allow the use of the property. If so, having a written document helps prove you allowed specific use and could help fight an adverse possession claim. This is because giving permission shows you knew about and allowed the usage while also establishing boundaries for that use.
• Rent the property: Similar to granting permission, you may be able to get the trespassers to sign a lease to rent the property. This could also help prevent a trespasser from making an adverse possession claim.

If you aren’t sure what steps to take in your state, a real estate attorney may be able to help you decide.

Not sure how adverse possession will affect different situations? Check out our questions about some real-life scenarios to learn more.

Does the statutory period start over when I move into a new home?

Let’s say you just bought a house and the attached garage is technically on the neighbor’s property. The structure was built over 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 purchased the property. That means you can claim that the trespass began when the garage was built. Forty years is past the typical statutory period, so the neighbor-owner has forfeited their ownership of the property.

If I bought a property that includes a neighbor’s garage, can I have it removed?

Using a reverse of the above scenario, let’s say you bought a property where the neighbor’s garage was built over 40 years ago. Could you challenge your neighbor’s right to ownership?

Aside from asking nicely, there’s likely nothing you can do in this situation. The trespasser has completed the statutory period and property rights have vested. If you sue and the court verifies an adverse possession claim, that would make the thing official and the title would be altered to show the change.

Hopefully, this usage would be disclosed before you complete a real estate transaction. A title search is required so that buyers are aware of any ownership interests beforehand.

If I planted a garden on my family member’s property, can I claim adverse possession?

For this example, let’s say you live next-door to your in-laws and you’ve created a garden that overlaps 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 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 the main functions of a homeowners association (HOA) 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.

In this case, if you sue to establish adverse possession, you might not be able to take the case to court to gain legal ownership.

How do adverse possession claims end up in court?

Disputes are common when it comes to property ownership. When the property owners can’t come to an agreement on their own or through a lawyer, the final decision might be left to the court system.

If you’re a property owner and you aren’t sure what your rights are, it’s best to seek legal advice before initiating any court proceedings against trespassers.

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 vigilant, you can stop an adverse possession claim before it gets started. Posting private property signs and keeping an eye out for trespassers is your first line of defense. If the issue is consistent or ongoing, getting legal help right away is crucial for avoiding an adverse possession claim.

If you’re currently dealing with an adverse possession or encroachment situation, you can learn how to resolve property line disputes with our tips for dealing with trespassers.