What Is Adverse Possession And How Does It Work?

When you buy a home, you naturally assume you’ll have full ownership and control over it. And that’s almost always the case. But in rare cases, through something called adverse possession, someone could gain title to your property.

The adverse possession laws vary from state to state, but each state has a version of one. And though it’s only in extremely rare situations that someone could gain title to another person’s property by adverse possession, it can still be helpful to understand how it works and in what situation it could happen.

What Is Adverse Possession In Real Estate?

Adverse possession is a legal doctrine that allows for a person in possession of someone else’s real estate to acquire a valid legal title to the property. If a person successfully claims adverse possession over someone’s property, they could gain legal ownership. If they prove adverse possession over a portion of someone else’s land, they may not have to pay the owner to use it.

Don’t worry – adverse possession isn’t something that could happen over the course of just a few months. In fact, many states have statutes of limitations for adverse possession.

Additionally, certain common law requirements, such as continuous possession, hostile possession, open and notorious possession and more must be met. The adverse possessor must also hold the property for a certain period, which differs depending on the statute of limitations.

What Are The Five Requirements For Adverse Possession?

The requirements for adverse possession can vary by state and jurisdiction. While you can check with your local governments to see what the requirements are in your area, the following are typical elements of adverse possession that must be met before possession of the property to a trespasser or squatter will be granted:

1. Possession Must Be Hostile

The definition of a hostile claim varies by state. Typically, this means that the trespasser or squatter is using the property without an existing agreement or license from the landowner. There are three legal definitions of hostile that states will follow before it comes to adverse possession:

• Simple occupation: This claim is typically followed by most states. It defines hostile as the simple occupation of the land. The trespasser doesn’t have to know that the land has a true owner.
• Awareness of trespassing: In awareness of trespassing, the trespasser is aware that they have no legal right to be on or use the property.
• Good faith mistake: This rule requires the trespasser to have made an innocent mistake in occupying the property. For example, they may have relied on an invalid or incorrect deed, making them unaware of the boundaries of the property. Only a few states follow this rule.

An example of hostile possession could be a neighbor who relies on faulty deeds of the property and accidentally places their new fence a few feet within your property boundaries. The neighbor was unaware of the actual property boundaries because they used a faulty deed and, therefore, had made a good faith mistake.

2. Possession Must Be Continuous

Continuous possession must be uninterrupted. This means that the trespasser cannot leave the property unmanaged and return to it later. For example, a trespasser cannot use the land for agriculture for several months or years, leave it unattended and then return to cultivating the land later on.

3. Possession Must Be Open And Notorious

Open and notorious possession is when it’s obvious the trespasser is trying to gain ownership of any parcel of land. This may include the true owner of the land’s full attempt to investigate the trespasser’s intentions.

An example of open and notorious possession is a person who has a concrete driveway poured and crosses their neighbor’s boundary line by several feet, making it seem as if the neighbor’s property is their own.

4. Possession Must Be Actual

Actual possession means that the person making the claim is currently in possession of the property for the duration of the statutory period. This means that they are making use of the property by maintaining it and, depending on state law, paying taxes on it. Usually, the trespasser can establish actual possession by documenting their maintenance and improvement efforts to the land.

Essentially, actual possession means that the trespasser is physically present and treats the land as if they were the owner.

5. Possession Must Be Exclusive

Exclusive possession means that the trespasser must possess the land solely on their own. Additionally, they cannot share possession with anyone, including the owner. Ownership must be without interruption over a specific period.

Essentially, the trespasser can’t return or give up the property at any time. Each state may have a different time restriction on this possession claim.

Examples Of Adverse Possession

When people think of adverse possession, especially when synonymous with squatter’s rights, we think of someone taking ownership of an entire property – potentially even someone else’s home. And while it’s possible for someone to adversely take ownership of an entire property, most cases are far more subtle.

A common example of adverse possession might be someone who decides to build a fence between their property and their neighbors. Regardless of whether the person building the fence knows of the actual property lines, they end up building the fence a foot or two into the neighbor’s yard.

The neighbor, not being aware of the official property lines, doesn’t know to challenge the placement of the fence. Eventually, enough years pass with the fence encroaching on the neighbor’s yard that the party who built the fence can claim adverse possession over those couple feet of land.

How To Prevent Adverse Possession

Adverse possession certainly sounds scary, but it’s also quite rare. And as a property owner, there are plenty of steps you can take to prevent your property from being adversely possessed.

• Identify your property lines: Some adverse possession happens because the parties don’t know where the property lines are. You can prevent this by reviewing your deed or plat, surveying your property or checking your county’s public records.
• Get an easement: An easement is a legal agreement that allows your neighbor to use a portion of your property without risk of adverse possession. An example of when an easement may be used is if you allow a neighbor to park on your property.
• Stay present: It’s important to be present on your property. Being present on your property rather than purchasing and abandoning it helps you keep tabs on what’s happening and gives you a legal defense against adverse possession.
• Check tax records: In some states, a trespasser must have paid property taxes on the property to be granted ownership. If you think someone may be trespassing, check the local tax records to see if they’ve made payments on your property.
• Rent or lease the property: You can prevent adverse possession by renting out the property or leasing it. The legal agreement invalidates the hostile element of possession and helps ensure the occupation has an end date.

Adverse Possession: FAQs

Adverse possession is a legitimate threat, but it’s one you probably don’t need to worry about if you’re fully aware of your state’s laws. Here are a few more things you might want to know about adverse possession.

How is adverse possession different from homesteading and squatting?

Adverse possession is like homesteading, but there are more conditions to be met with homesteading. Homesteading is when government-owned property or land has no clear owner on record and is then granted to new owners who prove they are using and improving it. If a homesteader doesn’t maintain the land, they could lose it.

What is the statute of limitations on adverse possession?

The statute of limitations on adverse possession depends on where you live and the nature of the possession. Some state laws allow someone to claim adverse possession within just 5 or 7 years if they are listed on the deed or have paid property taxes. However, many states require a period of either 10 or 20 years.

How do you beat adverse possession?

The best way to beat adverse possession is to be aware of your state’s laws, be aware of your property lines and be proactive in preventing someone from adversely taking control of your property. Legal agreements such as leases or easements can help prevent someone’s presence on your property from giving them a claim of adverse possession.

Is there any property that can’t be acquired through adverse possession?

There’s not necessarily a type of property that isn’t subject to adverse possession laws, though it may vary state by state. However, a property generally can’t be adversely possessed if the owner is present or has given express permission for another party to use their land.

What do I do if someone claims adverse possession of my property?

If someone claims adverse possession of your property, the first step should be to cut it off at the knees. For example, if you notice a neighbor building a fence or planting trees on your property, you should have it removed immediately. However, if enough time has passed that the other party might have a true claim, you’ll want to hire an attorney.

The Bottom Line

Adverse possession is an interesting legal concept whereby someone can take ownership of someone else’s property in certain situations. It’s a rare occurrence and generally involves many years of possession and a few important characteristics. And as a property owner, there are plenty of proactive steps you can take to keep it from happening to you.

If you’re planning for home renovations – perhaps because a tenant has recently moved out or you’ve discovered and have gotten rid of squatters – apply for a cash-out refinance with Rocket Mortgage^® today.