Adverse Possession

What Is Adverse Possession?

The term "adverse possession" refers to a legal principle that grants title to someone who resides on or is in possession of another person's land. The property's title is granted to the possessor as long as certain conditions are met including whether they infringe on the rights of the actual owner and whether they are in continuous possession of the property. Adverse possession is sometimes called squatter’s rights, although squatter’s rights are a colloquial reference to the idea rather than a recorded law.

Key Takeaways

  • Adverse possession is the legal process whereby a non-owner occupant of a piece of land gains title and ownership of that land after a certain period of time.
  • The claimant, or disseisor, must demonstrate that several criteria have been met before the court will allow their claim.
  • Requirements may include continuous use, a takeover of the land, and exclusive use.
  • Also known colloquially as squatters' rights or homesteading, the law may also be applied to other properties such as intellectual or digital/virtual property.
  • There are some measures landowners can take to avoid adverse possession.

Understanding Adverse Possession

As mentioned above, adverse possession is a legal situation that occurs when one party is granted title to another person's property by taking possession of it. This can happen intentionally or unintentionally with or without the property owner's knowledge.

In cases of intentional adverse possession, a trespasser or squatter—someone who occupies another person's land illegally—knowingly comes on to another person's land to live on it and/or take it over. In other cases, adverse possession may be unintentional. For example, a homeowner may build a fence separating their yard without realizing they've crossed over and encroached on their neighbor's property line. In either case, the adverse possessor—also referred to as the disseisor—can lay claim to that property. And if the claimant is successful in proving adverse possession, they are not required to pay the owner for the land.

A disseisor who successfully proves adverse possession is not required to pay the owner for the land.

Requirements to Prove Adverse Possession

The requirements to prove adverse possession tend to vary between jurisdictions. In many states, proof of payment for the taxes on a property and a deed is essentially required for the claimant to be successful. Each state has a time period during which the landowner of record can invalidate the claim at any time. For example, if the state threshold is 20 years and the landlord paints or pays for other maintenance on the house in question in the 19th year, then the claimant will have a difficult time proving adverse possession. That said, landowners are advised to remove the possibility of adverse possession as soon as possible by having signed agreements for any use of an owned property.

To successfully claim land under adverse possession, the claimant must demonstrate that his or her occupation of the land meets the following requirements:

  • Continuous use: Under this condition, the adverse possessor must show they've been in continuous and uninterrupted possession of the property in question.
  • Hostile and adverse occupation of the property: Although this doesn't mean that the disseisor uses force to take the land, they must show there is no existing agreement or license from the landowner such as a written easement, lease, or rent agreement.
  • Open and notorious possession: The person seeking adverse possession must occupy a property in a manner that is open, notorious, and obvious. The true owner is not required, however, to be aware of the occupation.
  • Actual possession: The possessor must actively possess the property for the state's predetermined statutory period, which may vary from three to 30 years. Possession may involve maintaining the land and—depending on state law—paying taxes.
  • Exclusive use: The property is used solely by the disseisor, excluding any others from using it as well.

Adverse possession has been proposed as a possible solution to discourage abuses of intellectual property rights like cybersquatting, excessive copyright, and patent trolling. Applying adverse possession to intellectual property as well as physical property would force the abusers to put more resources into actively using their portfolio of trademarks, patents, and so on, rather than just sitting on them and waiting for the actual innovators to step in their territory.

How to Prevent Adverse Possession

If you are a landowner, you can prevent a trespasser from gaining property ownership by taking some easy measures:

  • Identify and mark your property boundaries. Inspect your land regularly for signs of trespassers. You may want to use “no trespassing” signs and block entrances with gates. Although many states will not find a “no trespassing” sign sufficient to prevent an adverse possession claim, it's a good way to deter trespassers.
  • Offer to rent the property to the trespasser. With a proper rental agreement in place, the trespasser cannot claim adverse possession.
  • Grant written permission to someone to use your land, and make sure you get their written acknowledgment.
  • Act fast. In the event of trespassing, you must act before the trespasser has been on your land for the period of time detailed by your jurisdiction, in order to make a successful case.

Hire a lawyer as soon as you detect signs of trespassing on your land. You might need to file a lawsuit to expel the trespasser, or a court order to remove an unwanted structure from your land.

Adverse Possession vs. Homesteading

Adverse possession is similar to homesteading in practice. In homesteading, government-owned land or property with no clear owner on record is granted to new owners provided they are using and improving it. If a homesteader doesn't use the land, they can lose it. Adverse possession can operate in a similar manner by freeing up land with an unclear title for productive use.

Of course, adverse possession can also be abused in ways homesteading cannot. If there is an informal easement between two farms where one farmer’s fence has an acre of the neighbors’ land in it, for example, the farmer using it can claim adverse possession to essentially bite off that chunk of land if there is no written easement agreement.

What Are the 5 Requirements of Adverse Possession?

Although the requirements for adverse possession may vary significantly between jurisdictions, the following are the typical requirements that need to be met:

  • The possession of the property must be continuous and uninterrupted.
  • The occupation must be hostile and adverse to the interests of the true owner, and take place without their consent.
  • The person seeking adverse possession must occupy a property in a manner that is open, notorious, and obvious.
  • Possession of the property must continue for the state's predetermined statutory period, which may vary from three to 30 years.
  • The property must be occupied exclusively by the person seeking adverse possession.

What States Allow Adverse Possession?

Although all states allow adverse possession, the requirements can vary widely from state to state. The main differences involve the length of possession, the payment of taxes, and the presence of a document that claims to establish ownership (such as a deed). In general terms, states in the East do not require additional documentation, but they may require the payment of taxes on the property. States in the West tend to allow shorter periods of possession but have some additional requirements, such as the payment of taxes or a deed.

What Is the Time Limit on Adverse Possession?

The time limit varies by jurisdiction, ranging from three years (Arizona) to 30 years (Louisiana). The average time threshold is 10-12 years.

Who Can Claim Adverse Possession?

Any person in possession of land owned by someone else may claim adverse possession and acquire valid title to it under, as long as certain requirements are met, like being in possession for a sufficient period of time or paying taxes on the property. These requirements vary by jurisdiction.

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  1. Study.com. "Differences in Adverse Possession Between States."