How to Take Property by Adverse Possession

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Adverse possession is a legal term describing a process by which a person or business can occupy and get ownership of land that belongs to someone else without paying them a dime. This sounds like a dream come true for many folks, but acquiring real estate by adverse possession is not an easy thing to do. Anyone considering it needs an overview of the law of adverse possession.

What Is the Doctrine of Adverse Possession?

The term adverse possession refers to a legal principle that gives title to property to someone who resides on another person's land or otherwise takes possession of it. The operative word is "adverse," since the possession of land must infringe on the rights of the legal owners. If someone possesses and uses the parcel of land, the principle gives title to them as long as certain conditions are met.

The idea behind adverse possession is that the government favors the active and productive use of land. It encourages the use of land by assuring a person with physical possession of the property in an open and notorious way of the potential right to acquire ownership. Adverse possession is also known as squatter’s rights. However, squatters are not the primary beneficiaries of this law. Most adverse possession claims arise between neighbors, not strangers.

Elements of Adverse Possession

Adverse possession begins when property that belongs to one person or entity is occupied or possessed by another individual. But momentary occupation is not sufficient. There are five elements required for adverse possession to be realized. The claimant's action must be continuous, hostile, open and notorious, actual and exclusive. Each of these terms has a specific meaning:

  • Continuous use of the property: The person or entity must show that they have possessed the property continuously for the period.
  • Hostile claim: Hostility doesn't mean that aggressive force is used. Rather, it means that there is no apparent existing agreement with the property owner to be on the real property.
  • Open and notorious: The possession must be obvious and out in the open; an action that can easily be seen by anyone looking, rather than in secret.
  • Actual possession of the land: This means that the possessor must actually possess and use the property, maintain it and, in some states, pay taxes on it.
  • Exclusive: Nobody can use the property other than the possessor, who must exclude all other potential trespassers.

Requirements Vary Among States

The rights and conditions for obtaining property by adverse possession are different in various parts of the country. One example is the period of time required for someone to hostilely occupy the land before they can claim adverse possession title. Across the states, the time it takes to achieve adverse possession varies. A standard adverse possession law requires seven years of continuous possession by someone "under color of title" or 20 years otherwise. The threshold varies between three and 40 years, depending on the state.

One way to think of adverse possession is as a process akin to homesteading. In homesteading, title to government-owned land is granted to new owners if they use it, work it and improve it. If they don't, they can lose title. Adverse possession operates in the same way, freeing up land that nobody is using for someone who actually wishes to make it productive.

Recovering Possession of Property

Since the purpose of adverse possession is to bring unused property into productive use, it is no surprise that an alert owner can take steps to recover possession of their property. During the process of adverse possession, the owner can exclude the people who are adversely possessing their property by going to court. This can be a "quiet title" action or simply a call to the police to have the trespassers removed. As long as this happens before the adverse property period has passed, the original owners can take back the property.

Examples of Adverse Possession

The term "squatters' law" makes it seem as if most adverse possession happens when third-party strangers occupy property. While this occasionally is the case, it is not typical. A typical example of adverse possession is where one neighbor puts up a fence or builds on land that is actually owned by the next-door neighbor. That is, the person uses neighboring property in the same way as an owner would use it.

One example is if one neighbor installs a fence three or four feet over their boundary line. This is trespassing that can lead to adverse possession title claims. Similarly, if one neighbor constructs a garage or outbuilding on neighboring property, they are occupying the property openly, notoriously and hostilely. The person trespassing doesn't need to occupy the land with the intention of taking title by adverse possession. It can happen by mistake. For example, if a neighbor relies on an inaccurate property description when constructing the fence or garage, possession can still be adverse.

Note that a trespasser can get legal title to hundreds of acres of land via adverse possession. However, more often they get title only to a few feet of property. As long as they occupy the property continuously, exclusively, hostilely, openly and notoriously, title can pass through adverse possession.

Making an Adverse Possession Claim

Most adverse possession claims arise when the original owners take action to exclude the adverse possessors from their land. For example, if the original owner suddenly realizes that the neighbor's fence is built on property they don't own, they may make a claim. They might even bring a quiet title action to assert ownership. A valid claim of adverse possession can be raised in defense.

It is equally possible for the trespasser to bring a quiet title action against the original owner once the adverse possession claim has been perfected. As long as the five elements of adverse possession have been met, title passes.