What is adverse possession?

Adverse possession is a doctrine in real estate law that allows trespassers to claim ownership over a home or land if they've lived there for an extended period.

Pat Howard 1600

Pat Howard

Published July 2, 2019

KEY TAKEAWAYS

  • Adverse possession is also known as “squatters rights”

  • If you live on someone else’s property for an extended period of time, you can claim adverse possession and assume the title of the property

If you own a home or a parcel of land, you’re protected by trespassing laws if someone enters your property or uses it without permission. In many cases, trespassers may not realize they’re trespassing, and simply saying “Hi, you’re trespassing, please leave” will do the trick.

But there are extenuating circumstances where you may need to provide the trespasser with an eviction notice or prove your claim to the property in court. In some cases, your property may actually belong to the trespasser if you don’t step in soon enough and stake your claim. This niche corner of American real estate law is known as adverse possession, or “squatters rights”, which is a legal doctrine that protects trespassers if they’ve been living and maintaining the property for an extended period of time (typically anywhere from five to 30 years, depending on the state).

How does adverse possession work?

Adverse possession is essentially the legal process by which a trespasser can claim ownership of someone else’s land without actually having to pay them for the land. The doctrine’s main purpose is to reward individuals who are making productive use of a forgotten parcel of land or property and incentivizing property owners to make use of the property they own.

For example, say a wealthy landowner passes away and leaves each of his three ranches to you. Although you’ve dutifully occupied and maintained two of the ranches, you all but forget about the third until about ten years later, at which point you decide to gift it to your offspring.

However, upon move-in, it’s discovered that a stranger has taken up residence there; and not just that, the stranger is providing upkeep to the property, going so far as to irrigate the ranchland and feed the livestock. When you tell the stranger that you’re the rightful heir and you’d like them to leave, they explain to you that they’ve lived there for eight years and made it their home, all while paying taxes on the property.

In the above example, the stranger, better known as the “disseisor”, may be able to claim ownership through adverse possession, but only if the number of years the disseisor has occupied the property remain continuous throughout the jurisdiction’s statutory period. The number of years needed to inhabit property to claim adverse possession varies by state. In some states it’s five years, in others, it’s 30.

There are also a number of requirements, or elements, in adverse possession cases that must be met in order to claim the property as your own.

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What are the elements of adverse possession?

When presiding over an adverse possession claim, the court’s decision on the claim will be based on a number of factors:

The possession must be hostile, open and notorious

The first requirement for adverse possession is that the disseisor be hostile, open, and notorious. “Hostile” in this case simply means that the trespasser realizes that they are trespassing. However, in some states, trespassers are allowed to claim adverse possession if they occupied the land by mistake.

Their presence on the property must also be “open and notorious”, meaning open and obvious to everyone in their vicinity. You can’t be occupying the land secretively or using it to hide out. You basically need to make an effort to be a neighborly trespasser.

The possession must be actual

This means that the disseisor is actively in possession of the property, including maintaining it and paying taxes on it.

The possession must be continuous for the statutory period

The court will also need to determine if the disseisor lived at the property throughout the statutory period. The statutory period varies from state to state.

The possession of the property is exclusive

In order for an adverse possession claim to be legitimate, the diseissor must be the sole possessor of the property.

How to file for adverse possession

As we’ve already touched on, in order to claim adverse possession, you’ll need to have lived at the encroached property for the number of years defined by the state’s statute of limitations. In California, for example, the statutory period is five years before you’re able to claim adverse possession. In New York, the statutory period is ten years.

Once you’ve hired a lawyer and you feel you’ve satisfied all of the elements required by your state’s adverse possession doctrine, you bring a “quiet title” to the court, which is essentially a petition to claim ownership over the property. If your petition is granted, you can claim the title to the property.

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