Adverse Possession Laws

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 What is Adverse Possession?

Adverse possession is a legal principle that grants title of a piece of property to someone who resides on or otherwise takes 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 colloquially called “squatter’s rights.”

How is Title Different From Possession?

Title refers to legal ownership of property. A person with title to property has a deed showing that they are the owner.

Possession is something different: it refers to the physical occupation of the property. For example, if you rent out an apartment to another person, you have ownership, and the tenant has the right to possess the house per the lease agreement terms. Or, squatters taking over an abandoned building would give the squatters possession since they occupy the land, but the owner still has legal title and owns it.

What Gives Another Person Rights to Adverse Possession of My Land?

For a person to have adverse possession of a property, the person must:

  • Act like they are the true owner. They must maintain the property, pay taxes, and occupy the property
  • Use the property without the consent of the land’s legal owner
  • Pay no rent
  • Occupy the property in an open, notorious, and obvious manner. The true owner is not required, however, to be aware of the occupation
  • The use must be exclusive – there can be no one else using the land
  • Remain in continuous, uninterrupted land occupation for a period specified by law in the state where the property is located, usually 10 to 20 years.

How Long Does The Possessor Have to Occupy The Property?

State law prescribes the period of occupation of the land that qualifies the person who occupies the property to claim ownership by adverse possession:

  • In Arizona, it is 3-10 years, depending on whether the possessor holds a deed or has paid the real estate taxes
  • In California, Montana, Nevada, and Texas, it can be as little as 5 years
  • In Alaska, Arkansas, Colorado, Florida, Georgia, Illinois, Kentucky, Tennessee, Utah, and Washington, it is 7 years
  • Alabama, Indiana, Iowa, Louisiana, Mississippi, Missouri, Nebraska, New Mexico, New York, Oregon, Rhode Island, South Carolina, South Dakota, Wisconsin, and Wyoming, it is 10 years.
  • In Connecticut, the District of Columbia, Kansas, Michigan, Minnesota, Nevada, Oklahoma, Oregon, Vermont, Virginia, West Virginia, and Wyoming, it is 15 years old.
  • In Colorado, Delaware, Hawaii, Idaho, Maine, Maryland, Massachusetts, New Hampshire, and North Dakota, it is 20 years.
  • In New Jersey, it is 30 years

What If the Possessor Believed the Property Was Theirs?

Courts in different states view the intent of the possessor differently. Generally, how courts view a possessor’s intent can be broken down into three categories:

  • Objective: In states with the objective standard, It does not matter what the possessor believes about who owns the property. The possessor might be granted or denied legal title based on the facts of the case, but the possessor’s belief that the property was theirs will not be a factor at all.
  • Good Faith: States with the good faith standard are more likely to give title to the property to a possessor who incorrectly believes the property is theirs. That could arise, for example, if the possessor has a title but believes it is defective and cannot be registered.
  • Bad Faith: Bad faith means that the possessor knows they don’t own the property and they want to take it away from the true owner

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 attempts to make productive use of vacant property. American law assumes that property unused is property wasted. Giving property to possessors who act in bad faith at least ensures that the property will not go wasted.

So I Can Acquire a House For Dirt Cheap With Adverse Possession?

Theoretically, a person can acquire a house for a low investment through adverse possession, but it would be challenging in practice. First, adverse possession requires that the person possessing the property use it continuously for a specific, lengthy period. If the true owner catches the possessor in the act, the possessor could be arrested and fined for criminal trespass.

One possibility would be to move into a vacant house that has been foreclosed on. Banks are the true owners of foreclosed houses, and if they become aware of the unauthorized occupation, they can ask the police to evict the trespasser.

Second, adverse possession requires that the occupation of the property by the possessor be open. The possessor has to make it common knowledge that they are openly occupying the property. This might involve putting up “No Trespassing” signs, building fences to keep others out, and paying the real estate taxes on the property. However, if the possessor makes the possession obvious, the true owner could be put on notice and take legal action to oust them, e.g., by going to court for an order of eviction.

If It Is So Difficult to Acquire Property Using Adverse Possession Today, Why Keep the Doctrine?

Courts use the doctrine of adverse possession to settle many types of property disputes. For example, suppose that two property owners, Bob and Jebediah, have properties that share a border. Bob builds a fence a few inches over the border so that a small portion of Jebediah’s property is on Bob’s side. Who owns that section of land? The law of adverse possession could settle this situation.

Another example could arise if their children or succeeding property owners dispute over the property. For example, suppose that neither Bob nor Jebediah realizes that part of Jebediah’s property is on Bob’s side of the fence. Instead, Bob’s son, Ken, inherits the property from his father, while Jebediah sells his property to Dave. Adverse possession would settle any dispute between Ken and Dave after Bob and Jebediah have exited the scene.

What If the True Owner Gives Permission?

If the true owner gives permission, there is no adverse possession. The owner will retain legal title; 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, the possessor becomes the new, true owner. The original owner will not have any rights to their former property. However, in some states, courts will require that an adverse possessor pay monetary compensation to the original owner as damages for depriving the property owner.

Do I Need an Attorney for My Adverse Possession Problem?

The laws dealing with adverse possession can be complex and difficult to understand. An experienced real estate 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 land ownership, an experienced real estate lawyer can file the necessary paperwork and represent you.

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