Real Estate Law

Adverse Possession

Adverse possession is a legal principle in real estate law that allows a squatter to take legal title over a parcel of land after a certain period of time. In other words, an adverse possessor (squatter) can take the property rights of the property’s actual owner even though the squatter never had legal ownership rights.

It sounds unfair and even ridiculous that a trespasser could gain the upper hand against the true owner of a real property. Yet, the doctrine of adverse possession exists to encourage “productive” use of the land in situations where a “true” property owner does not make use of the property themselves.

Whether you’re a homeowner affected by an adverse possession claim, or you’re a non-owner fighting for your squatter’s rights, a real estate attorney can help you understand your legal rights.

Elements of an Adverse Possession Claim

Every state (legal jurisdiction) requires slightly different elements to recognize a claim of adverse possession. While an attorney can help you frame your case within your state’s specific legal requirements, the common elements of adverse possession claims require that actual possession of the property be:

  • Open and notorious: It is visible and easily discoverable by observers.
  • Exclusive: A squatter must make exclusive use of the property and refuse to share control with anyone else.
  • Hostile: The squatter must deny the true owner’s property ownership, such as by occupying the land without permission.
  • Continues for a pre-determined statutory period: A squatter must maintain continuous possession for a specific time period. State law requirements can range from a few years to a few decades.
  • Continuous and uninterrupted: Continuous use requires the squatter to not stop using the property for unreasonably-long periods, like months or years at a time.

Some states also require the payment of taxes, such as property taxes, for a successful adverse possession claim. Other states might recognize additional elements, such as a good-faith attempt by someone to obtain title. For example, someone with a defective grant deed might honestly believe they are a true owner, which gives them “color of title” but not legal ownership unless adverse possession can be proven.

To be clear, whether it’s personal property or real property, you should avoid illegally using property that doesn’t belong to you. You can get arrested for trespassing, and you or someone else might get hurt.

But when enough time has passed, you can bring a quiet title action in court. This is a special type of case where a judge can rule that you have obtained the legal right to the property over anyone else, including the true owner.

What To Do as a Property Owner

The obvious thing to do as a true owner if you discover someone squatting is to call the police immediately. Confronting a squatter can be dangerous, especially if they are armed. If your home has been turned into a meth lab or a recurrent hub for burglary, you’re better off leaving it to the authorities to sort out the mess.

If the police cannot help you, you can try filing an eviction action (also known as an unlawful detainer action) in court. This is ordinarily the type of case landlords bring against tenants who break a lease’s terms, but it can also be effective against squatters.

If eviction doesn’t work, you must file a quiet title action. In a quiet title action against an adverse possessor, you’ll probably want to argue that their possession was:

  • Not obvious at all, and a reasonable person would never think the property was occupied by the squatter
  • Taking place at the same time you were still using your property
  • Taking place with your blessing, or at least, you didn’t have a chance to say no
  • Too short to meet the time requirements of state law
  • Interrupted for months or years at a time when the squatter would leave the property unoccupied

In states that require payment of property taxes, you can also point out that the squatter never paid them — especially if you were still paying the property taxes.

An Attorney Can Help Either Way

An experienced real estate attorney can give you legal advice on whether you have a case as either the true property owner or a squatter attempting to obtain legal rights.

A real estate lawyer can also discuss adverse possession cases in the context of easements and access across property lines. This is a similar topic that involves gaining access to a pathway that belongs to another property owner.

Remember that adverse possession cases are subject to the statute of limitations in the state where the property is located. So it’s better to consult with a lawyer as soon as possible to avoid losing your claim before you can even take action.

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