What is adverse possession in real estate?

As a property owner, there are numerous risks that demand your attention, particularly if you’ve recently purchased a home. One often overlooked yet significant risk is adverse possession, a potential threat that could affect your property rights.

Often called “squatter’s rights,” adverse possession is a legal doctrine that allows a trespasser to claim ownership rights of a piece of real estate. Trespassers are given legal rights as long as they meet the state’s statute of limitations such as staying on the property for a specified period of time.

Adverse possession, explained

Adverse possession can give trespassers the legal right to take possession of land they don’t own under certain circumstances.

The real estate law that supports the doctrine of adverse possession notes that the land should be productive – meaning the person using the land is living on it or working in the fields on the property – and that if a landowner is absent or oblivious, the person using the land (and meeting all of the state’s the criteria) should have the legal right to own it.

What are the 4 requirements for adverse possession?

The requirements for adverse possession vary by state and jurisdiction, but the conditions that usually need to be met include:

• The continuous and uninterrupted possession of the property
• The hostile use of the property, unwelcomed by the actual owner
• The notorious use of the property by the person seeking adverse possession
• The trespasser has to have exclusively occupied the property for the statutory period determined by the state

Elements of adverse possession

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

A couple of ways adverse possession conditions can vary by location include:

• Payment of property taxes: Some state laws require that the trespasser pay and be up to date on property taxes.
• Statutory period: States mandate varying lengths of trespass, also known as the statutory period. The statutory period is the minimum amount of time an individual has to occupy a property before the possibility of owning it under adverse possession. This period ranges from 2 years in Arizona to 30 years in Louisiana.

Regardless of which state they live in, an individual has to meet the following conditions to claim land under adverse possession successfully.

Open possession

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 Possession

The trespasser’s use of the property needs to be notorious, meaning 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 occupation

While it’s not required that the trespasser take the land using force or violence of any kind, the trespassing does need to be done in a way that infringes on the owner’s rights without permission, according to Nolo.com. If the owner allowed the trespassing, there can’t be an adverse possession claim as it’s not hostile.

Actual possession

To make an adverse possession claim, the trespasser must be living on the land, in the house or working in the fields on the property they’re trying to take possession of. The trespasser can document their efforts of maintaining and improving the land, such as tending to a garden or making significant repairs on the property, to support their claim.

Exclusive use

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.

For example, let’s say Alex finds a nice, wooded lot to enjoy weekly walks. The lot belongs to Morgan, who also uses it for walks in nature. Alex wouldn’t be able to sufficiently claim adverse possession in this scenario because the property isn’t being exclusively used.

Continuous use

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 over, they have to restart the statutory period before they can claim adverse possession.

According to Nolo.com, “continuous” in this case means the use is regular and uninterrupted, but this doesn’t mean the possessor has to remain on the property for 24 hours, 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 fulfill the requirement.

What happens if the trespasser proves their claim?

If the trespasser successfully makes an adverse possession claim, property rights are legally transferred. The adverse possessor will own the property’s legal title, and they can use or dispose of it as they choose.

Adverse possession vs. a prescriptive easement

A prescriptive easement is different from an adverse possession. They’re both ways to gain legal access to someone else’s land, but the extent of the use is different. 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 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.

How to prevent adverse possession

As a property owner, you can prevent a claim of right through adverse possession by taking some precautions to help protect your land, 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.

How to get help with trespassers

If the steps for preventing adverse possession didn’t work and you’re already dealing with trespassers, it’s crucial to take action immediately. According to Nolo.com, there are some ways to intervene if you’re already dealing with trespassers:

• Contact law enforcement: Contact the police as soon as possible to remove trespassers and provide documentation about the incident.
• Contact an attorney: If the problem with trespassers is recurrent, or they’ve built a shelter or building on your property, contact a lawyer immediately. 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 will help you prove that you allowed specific use of the land. This can help you fight an adverse possession claim since it’ll spell out the allowed usage.
• Rent 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.

If you aren’t sure what steps to take in your state, a real estate attorney can help you decide. At times, taking the case to court might be necessary.

Examples of adverse possession

To better understand adverse possession and how it works, you might find it helpful to look at some examples of what would happen in some real-life scenarios.

Moving into a house with an attached garage on the neighbor’s property

For our first example, 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 purchase the property. That means you can claim that the trespass began when the garage was built. Since 40 years is past the typical statutory period, the neighbor-owner has forfeited their ownership of the property.

Buying a property that includes a neighbor’s garage

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 your neighbor nicely 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 vested. If you sue and the court verifies an adverse possession claim, that would make it 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.

Planting a garden on a family member’s property

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 from suing their neighbor. If you want to sue, 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.

The bottom line: Protect 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 notice.

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 should consider contacting a real estate attorney as soon as possible to help you with next steps.