What is adverse possession? How does it safeguard property?

Being a property owner comes with a lot of gratification – emotional as well as financial. However, there is also a certain amount of anxiety – especially if you’ve recently purchased a home. One of the risks you may have to deal with is adverse possession. So, what is adverse possession, and what happens if a trespasser or squatter claims legal possession of your property? Let’s find out. 

What is adverse possession?

Often called “squatter’s rights,” adverse possession is a legal principle allowing a person to claim ownership of someone else’s property by occupying and using it in an open, continuous, and hostile manner for a specified period. Simply put, it gives trespassers the legal right to take possession of land they don’t own.

Now, you may ask, why is this allowed?

This doctrine has been a part of various legal systems for centuries. It is based on the idea that land should not lie idle or neglected. 

How does adverse possession work?

How does one party get title to another person’s property by taking possession of it? This can happen with or without the property owner’s knowledge. It can be intentional or even unintentional – depending on the claimant’s motive.

In instances of deliberate adverse possession, an intruder or squatter intentionally enters someone else’s land with the purpose of residing there or taking control of it. However, adverse possession can also occur unintentionally. For instance, a homeowner might unknowingly construct a fence that extends beyond their property line, encroaching upon their neighbor’s land. In either scenario, the adverse possessor, also known as the disseisor, can assert a legal right to the property. If the claimant is successful, they are not obligated to compensate the owner for the land.

What are the conditions for establishing adverse possession?

Adverse possession can arise when someone occupies a property without the owner’s knowledge or consent, and if the original owner fails to take legal action to assert their rights within the statutory time frame. The adverse possessor may eventually acquire legal title to the property. 

Of course, to establish adverse possession, certain requirements must be met. These include:

• Continuous possession of the property or use of the property/house: It is necessary for the claimant to demonstrate that they have continuously and uninterruptedly possessed the property in question.
• Hostile and adverse occupation of the property: While the forceful acquisition of the land is not a requirement, the individual must establish that there is no existing agreement or authorization from the landowner, such as a written easement, lease, or rental agreement.
• Open and notorious possession: The claimant must occupy the property openly, conspicuously, and in a manner that is apparent to others. However, it is not obligatory for the true owner to be aware of the occupation.
• Actual possession: The possessor must actively and physically possess the property for a specified statutory period determined by the state, which can range from three to 30 years. Possession may involve the upkeep of the land and, depending on state laws, payment of taxes.
• Exclusive use: The claimant alone has used the piece of real estate.

Adverse possession laws are complex and can differ between jurisdictions, so it is crucial to consult with a legal professional or a real estate attorney to understand the specific rules and requirements for adverse possession in a given jurisdiction.

If these conditions are met, the property’s title is granted to the possessor!

What should the property owner do to prevent any adverse possession? 

The first thing a homeowner or landlord can do is to be aware of what is adverse possession. The next step is to ensure that the conditions of adverse possession are not met. 

For example, if the adverse possession limit in a state is 20 years. The original landlord can get the house painted or pay for any home maintenance in the 19th year. In such a scenario, the claimant will have a difficult time proving ownership. 

The most important thing a landowner should do is remove the possibility of any adverse possession by keeping signed agreements regarding the use of the property.

How to prevent adverse possession?

If you own land, you can take a few measures to prevent a trespasser from acquiring ownership of your property:

• Determine and clearly mark the boundaries of your property.
• Regularly inspect your land to detect any signs of trespassing.
• Use “no trespassing” signs and secure entrances with gates.
• Offer to rent the property to the trespasser, establishing a formal rental agreement. By doing so, the trespasser would be unable to make a claim for adverse possession.
• Provide written permission to someone to use your land, ensuring that you obtain a written acknowledgment from them.
• Act swiftly before the trespasser exceeds the time period specified by your jurisdiction. This is necessary to build a strong case in your favor.

Is there a legal way to deal with trespassers?

In case you suspect that someone is trespassing on your land and you intend to initiate legal action, the best action is to hire an experienced attorney promptly. You should also do your due diligence and research the state’s laws.

Certain states may mandate that trespassers pay property taxes for the duration of their stay, while others might require trespassers to possess documentation proving ownership of the property, such as a deed, even if it contains inaccuracies. 

If you discover a trespasser on your property:

• Contact the local police.
• Retain the services of a lawyer who has good experience in adverse possession. 
• Provide written permission to the individual for the use of the land and obtain their written acknowledgment. 
• Offer to lease the land to the trespasser if it suits you.

Last thoughts

Now that you know what is adverse possession, you can use the knowledge to make sure it never happens to you. The last thing you want is someone taking possession of your property intentionally or unintentionally. 

Unfortunately, the laws surrounding this type of squatters’ rights or homesteading may also apply to intellectual property or digital/virtual property.

And, fortunately, as a landlord or property owner, there are measures you can take to avoid adverse possession.

Read more: Exclusive right to sell

FAQs

What is adverse possession vs. homesteading?

Homesteading is when land or property owned by the government and lacking a definite owner can be granted to new owners who actively utilize and enhance it. 

The doctrine of adverse possession, on the other hand, allows a person to claim ownership of land owned by someone else by openly occupying and using it without the owner’s permission for a specified period of time. They both work almost in the same way. However, someone can abuse adverse possession more easily than homesteading. 

What is the time threshold for adverse possession?

The time limit can vary from one jurisdiction to another. For example, it’s three years in Arizona and 30 years in Louisiana. The average period of adverse possession ranges from 10 to 12 years.

Who can make a claim on adverse possession?

If an individual holds land belonging to another person for a specific time and meets certain obligations (such as paying property taxes), they can legally obtain ownership of it.

If my property includes a neighbor’s garage, can I legally get it removed?

In case the trespasser has completed the statutory period and has claimed property rights, you will not be able to challenge your neighbor’s right to ownership. That’s why, a title search is a must before buying a home. 

What is the difference between a trespasser and a squatter in California?

A trespasser enters another person’s property without permission. Trespassing is generally a civil offense, and the property owner can ask the trespasser to leave. If the trespasser refuses to leave or continues to trespass, the property owner can involve law enforcement to have them removed.

On the other hand, a squatter is an individual who occupies an abandoned or vacant property without the owner’s permission – establishing residence and living in the property as if it were their own. Squatting is typically a civil matter rather than a criminal offense in California.

Written by Ramona Sinha. June 17, 2023

Ramona is the Senior Content Writer for Kukun. This experienced blogger uses simple and succinct words to decipher the complex phenomenon called life. She has written articles covering a broad range of topics, such as real estate, lending and mortgage, finance, business, taxation, home designs, home improvement projects, decor concepts, and more. An avid traveler, she’s a digital nomad at heart and an animal lover from the depth of her soul.