What is adverse possession in real estate?

One often overlooked and significant risk of owning a property is 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.

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.
• If you suspect an adverse possession claim, contact law enforcement and consult a legal professional.

Defining adverse possession

Adverse possession is a legal concept where a property owner can forfeit their ownership rights to someone who continuously occupies or possesses the land.

Adverse possession is meant to recognize the use and development of land that has been effectively abandoned by its legal owner.

4 requirements for adverse possession

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

1. Continuous and uninterrupted possession of the property.
2. Hostile use of the property, which means it’s unwelcomed by the legal owner.
3. Notorious use of the property by the person seeking adverse possession.
4. The trespasser must have exclusively occupied the property for the statutory period determined by the state.

Elements of adverse possession

The criteria a trespasser must meet to claim adverse possession change from state to state. A couple of ways adverse possession conditions vary by location include:

• Payment of property taxes. Some state laws require trespassers to pay property taxes.
• Statutory period. States mandate varying lengths of trespass, also known as the statutory period. The statutory period is the minimum time an individual must occupy a property before they can claim ownership under adverse possession. This period ranges from 5 years in California to 30 years in Louisiana.

All states require individuals to meet the following conditions to claim land under adverse possession:

• 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 must be notorious, meaning the community would believe the trespasser owns the property. The legal owner doesn’t need to be aware of a notorious possession for it to meet legal requirements.
• Hostile occupation. It’s not required that the trespasser take the land using force. However, trespassing must be done in a manner that infringes on the owner’s rights without their permission. If the owner allowed the trespassing, there can’t be a claim.
• Actual possession. The trespasser must be 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 maintain and improve the land. Improvements can include tending to a garden or making significant repairs on the property.
• Exclusive use. 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. 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.

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.

How to prevent adverse possession

As a property owner, you can prevent a claim of adverse possession by taking precautions, such as:

• Clearly marking the boundary lines.
• Walking your property lines to check for signs of trespassing.
• Installing “No Trespassing” signs.
• Building a fence around your property or installing a gate to block access to your driveway.

How to get help with trespassers

If taking steps to prevent adverse possession didn’t work or you’re already dealing with trespassers, it’s crucial to act immediately. Ways to intervene include:

• Contacting law enforcement. Contact the police as soon as possible to remove trespassers and document 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 most effective way to defend against 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, as it’ll clearly outline the permitted 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. Taking the case to court might be necessary.

Examples of adverse possession

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

Moving into a house where the attached garage sits on the neighbor’s property

Say you buy a house where the attached garage has been 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 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 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 verifies an adverse possession claim, that makes it official, and the title would be altered to show 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.

Planting a 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.

Adverse possession vs. a 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.

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. The neighbor could reasonably expect to not be sued, citing HOA rules, and you may not be successful in disputing the restriction. If you decide to sue to establish adverse possession, know that you might be unable to take the case to court.

The bottom line: Protect your property to avoid losing it

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 pay attention to your property just in case. If you’re vigilant, you can prevent an adverse possession claim from taking hold. Posting private property signs and keeping an eye out for trespassers is your first line of defense. If the issue is consistent or ongoing, seeking legal help promptly 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 the next steps.