Adverse Possession: What Is It And How Does It Work?

Hanna KielarJanuary 10, 2020

You may be surprised to learn that trespassers can actually take possession of a portion of your property without your consent. This is known as adverse possession. Of course, adverse possession is circumstantial.

This may seem intimidating to homeowners, but understanding how it works and how to prevent it can help. There are a lot of elements that are at play before strangers can take an owner’s property. Read on to learn more about adverse possession and how it works so that you can avoid it.

What Is Adverse Possession?

Sometimes called squatters rights or homesteading, adverse possession is a legal process that allows a trespasser to occupy and eventually gain ownership of a piece of your property. If the trespasser’s claim is successful in proving adverse possession, they may not have to pay the owner of the land. Sometimes adverse possession may not be the intention of the trespasser or may happen solely by mistake.

For example, let’s say your neighbor relied on the faulty deeds of the property and accidently placed their new fence a few feet within your property boundaries. This may be considered adverse possession.

There are a few other common examples of adverse possession. One is the continuous use of a private road or driveway or the agricultural development of an unused piece of land. Essentially, adverse possession rewards the trespasser’s use of land and punishes the actual landowner for not fully understanding or exercising their property rights.

What Are The Elements Of Adverse Possession?

It’s important to note that the requirements for adverse possession can vary by state and jurisdiction. While you can check with your local government to see what the requirements are in your area, the following are typical adverse possession elements that must be met before possession of the property to a trespasser or squatter will be granted:

1. Hostile Claim

The definition of hostile claim varies by state. Typically, this means that the trespasser or squatter is using the property without an existing agreement or license from the landowner. Additionally, the occupation is hostile or adverse to the interests of the true owner, and the owner has not given rights to the property but knows of the occupation. There are three legal definitions of hostile:

·      Simple occupation. This claim is typically followed by most states. It defines hostile as the simple occupation of the land. Essentially, the trespasser doesn’t have to know that the land has a true owner.

·      Awareness of trespassing. In awareness of trespassing, the trespasser must understand that they have no legal right to be on the property.

·      Good faith mistake. This rule requires the trespasser to have made an innocent mistake in occupying the property. For example, they may have relied on an invalid or incorrect deed, making them unaware of the boundaries of the property. Some states follow this rule.

For instance, in the fence example above, the neighbor was unaware of the boundaries of the property because they used a faulty deed. Therefore, this claim would be considered a hostile claim.

2. Actual Possession

Actual possession means that the person making the claim is currently in possession of the property. This means that they may maintain it, and depending on state law, pay taxes on it. Usually, the trespasser can establish actual position by documenting their maintenance and improvement efforts to the land.

Essentially, this definition means that the trespasser is physically present and treats the land as if they were the owner.

3. Open And Notorious Possession

Open and notorious possession is when it’s obvious the trespasser is trying to gain ownership. This may include the true owner of the land’s full attempt to investigate the trespasser’s intentions. An example of open and notorious possession is a person who has a concrete driveway poured that crosses their neighbor’s boundary line by several feet. This would seem as though their neighbor’s property was, in fact, their own.

4. Exclusive Possession

Exclusive possession means that the trespasser must possess the land on their own. Additionally, they cannot share possession with anyone, including the owner. Ownership must be without interruption over a specific period. Essentially, the trespasser can’t return or give up the property at any time. Each state may have a different time restriction on this possession claim.

5. Continuous Possession

As briefly mentioned in the previous section, exclusive possession must be continuous. This means that the trespasser cannot leave the property unmanaged and return to it later. For example, the trespasser cannot use the land for agriculture for several months or years, leave it unattended, and then return to cultivating the land.

How Can I Prevent A Squatter Or Trespasser From Taking My Property?

As a property owner, adverse possession may leave you feeling helpless. But luckily, there are several ways you can prevent adverse ownership. Here are a few ways that you can take preventative action:

1. Get An Easement

As with many legal situations, having an agreement in writing helps you in the long run. An easement is a use permit that you can create yourself or have a lawyer write up for you. You can give written permission to someone to use your land and get their acknowledgement documented.

An example of an easement is a written statement between neighbors that allows them to park on one person’s land or to plant a garden in an unused plot.

2. Be Present

It’s important to be present on a property, rather than purchasing and abandoning a piece of land for multiple years. Your presence not only helps you to keep a pulse on what’s happening on your land, but also will give you a legal defense should you need one in the future. This is especially important if you have a second home or property.

3. Check Tax Records

In some states, the trespasser must have paid taxes on the property to be granted ownership. If you think that someone may be trespassing, you can check property tax records. This will help you see if anyone has made tax payments on your property. Typically, you can check these records online through your local tax assessor.

4. Rent To A Trespasser

If you know that a person is on your land, leasing to that person can protect you, because it invalidates the hostile element of adverse possession.This helps to ensure that the occupation of land in question is documented and has a set time limit, thus granting you full rights as the lawful owner.

The Bottom Line

While adverse possession can be stressful to a landowner, there are many ways to prevent it. Now that you’re aware of the risks involved and how to prevent it from happening to you, you can take the steps to ensure that your land is properly protected.

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