Adverse Possession is a way to obtain land by simply using it instead of paying for it. Most common is the situation where someone owns undeveloped land that is being occupied by another without the actual owner knowing about it.
How is Title Different than Possession?
Title refers to legal ownership such as having the deed. Possession refers to physical control of property. For instance, an abandoned building that squatters have taken over would give the squatters possession since they have physical control of the land, but the owner still has legal title.
What Gives Another Person Rights to My Land / Adverse Possession?
For a person to have adverse possession over a property he must:
- act like the true owner, e.g. maintain the property, pay taxes, etc.;
- openly act as if he owns the land;
- use the property without the consent of the land’s legal owner and pay no rent; and
- use the property for a period of time specified by law, usually 10 to 20 years.
How Long Does The Possessor Have To Occupy The Property?
The answer will differ by states:
- 2 years: Arizona
- 5 years: California, Idaho, Montana, Nevada
- 7 years: Alaska, Arkansas, Florida, Tennessee, Utah, Washington
- 10 years: Alabama, Indiana, Louisiana, Mississippi, Missouri, Nebraska, New Mexico, New York, Oregon, Rhode Island, South Carolina, Texas, West Virginia, Wyoming
- 15 years: Connecticut, District of Columbia, Kansas, Kentucky, Michigan, Minnesota, Oklahoma, Vermont, Virginia
- 18 years: Colorado
- 20 years: Delaware, Georgia, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Hampshire, North Carolina, North Dakota, South Dakota, Wisconsin
- 21 years: Ohio, Pennsylvania
- 30 years: New Jersey
What If the Possessor Believed The Property Was His?
Different states have different rules regarding the intent of the possessor. Generally, a possessor’s intent can be broken down into three categories:
- Objective – It does not matter what the possessor believes about the property. In objective states, the possessor could be granted or denied legal title, but the possessor’s belief that the property was his will not be a factor at all.
- Good Faith – The state is more likely to give title of the property to a possessor who believes the property is actually his.
- Bad Faith – The state is not likely to give title of the property to a possessor who believes the property is actually his. The state will only award a possessor title if the possessor intentionally set out to deprive the true owner of the property.
Why Would a State Give a Possessor Title If the Possessor Acted In Bad Faith?
The primary reason a state would give a possessor who acted in bad faith (i.e. intentionally trying to take the owner’s property) is to reward a possessor’s labor and possessor’s attempts to discover unused property. American law draws its origins from English law, which assumes that property unused is property wasted. Thus, giving property to possessors who act in bad faith ensures no property will go unused, allowing the community to produce at full capacity.
So I Can Acquire a House For Dirt Cheap With Adverse Possession?
In theory yes, but it’s much more difficult in practice. First, adverse possession requires that the person possessing the property must continuously use the property for a specific amount of time. If the true owner catches the possessor in the act, the possessor will get arrested and a fine for criminal trespass instead of a house. In the case of foreclosed houses, the banks are the true owners. Although filling out an adverse possession form will protect the possessor from charges of criminal trespass, the true owner can still ask the police to evict the possessor.
Second, adverse possession requires that the occupation of the property by the possessor be open. The possessor has to make it common knowledge that the possessor is taking control of the property. This might involve putting up “No Trespassing” signs, building fences and paying taxes on the property. However, if the possessor makes the possession obvious, the true owner will start running to the courthouse to get an eviction order.
If It Is So Difficult to Acquire Property Using Adverse Possession Today, Why Keep It?
Courts like using adverse possession to settle property disputes. Suppose that two property owners, Charley and Jones, share a border on their property. Charley builds a fence a few inches over the border so that a small portion of Jones property is on Charley’s side of the fence. Adverse possession could settle this tricky situation if all the elements are met.
Another situation could arise if their children or the next property owners squabble over the property. For example, suppose that neither Charley nor Jones realizes that part of Jones property is now Charley’s side of the fence. Instead, Charley’s son, Ken, inherits the property from his father while Jones sells his property to Barbie. Adverse possession would settle any property dispute between Ken and Barbie even if Charley and Jones are no longer involved.
What If The True Owner Gives Permission?
If the true owner gives permission, there is no adverse possession. The owner will retain legal title and thus the true owner can rescind permission at any time.
If The Possessor Takes Property From the True Owner, Does The True Owner Have Any Rights Left?
Once the possessor gains legal title over the property, the possessor becomes the new true owner. The original owner will not have any rights to his former property. However, before the court transfers title, some states will require that the possessor give monetary compensation to the original owner for depriving the owner of the property.
Do I Need an Attorney for my Adverse Possession Problem?
The laws dealing with adverse possession can be intricate and difficult to understand. A real property attorney can help determine if your land has been adversely possessed and what legal rights you have. If you have to go to court to establish your ownership of the land an experienced real property lawyer can file the necessary paperwork and represent you.