Adverse possession can be a complex and contentious legal issue in real estate, as it involves determining the rights of the current possessor versus the original property owner. Understanding the intricacies of adverse possession can be beneficial for property owners, real estate professionals, and anyone dealing with property disputes.
By knowing the basics of adverse possession and seeking legal advice when needed, individuals can protect their property rights and navigate any potential challenges that may arise.
Understanding Adverse Possession
At its core, adverse possession means that the person who is in possession of and/or is residing on a piece of land is granted the title to that property. This is regardless of who the true owner of the piece of property is. Certain conditions or criteria must be met for adverse possession to take place. The specific conditions that prove adverse possession vary by jurisdiction.
Adverse Possession vs. Homesteading
Adverse possession and homesteading are different because each has different underlying principles and requirements. This makes each a separate legal situation. With adverse possession, a person is granted legal ownership of a property because they have lived on it for a certain period without being challenged by the original owner of the land. Typically, this occurs when someone knowingly trespasses on a piece of land and proceeds to live there as if they have legal rights to the property.
Homesteading is a bit different and has a deeper historical context. For centuries, people have “found” unoccupied land and proceeded to develop and settle on that land. That’s what homesteading is — taking a piece of unoccupied land to make productive use of it and eventually obtaining legal ownership of the land.
Requirements for Adverse Possession to Occur
In most cases, adverse possession doesn’t happen quickly or easily. The exact requirements for each state depend on the local jurisdiction. However, these are the basic requirements for someone to make an adverse possession claim.
Open Possession
Open possession means that the person is openly occupying the property. They are not trying to hide that they’re staying on the property.
Notorious Possession
Notorious possession refers to the tenant essentially acting as if they own the property. If someone were to have notorious possession of a house, for example, neighbors might observe them mowing the lawn and tending to the property in other ways.
Hostile Occupation
Hostile occupation sounds more aggressive than it is. It essentially means that the person is taking over the land without a written agreement.
Actual Possession
Actual possession requires the person to actively “possess” the property for the statutory period that is set by the state the property is in. Some states might also require other criteria such as maintaining the land or paying taxes.
Exclusive Use
Exclusive use means that the property is being used exclusively by the person who intends to claim adverse possession.
Continuous Use
Once the person takes possession of the property, they need to remain in possession of the property continuously. A person can lose their claim to adverse possession if there is an interruption to the time that they remain on the property.
How to Prevent Adverse Possession
- Make a habit of inspecting all areas of your property regularly. This is especially important if you have buildings or campers on your property that you don’t use often.
- Be sure that you’re aware of the laws on adverse possession in your state.
- Understand and mark the boundaries of your property.
- Consider putting up “no trespassing” signs and using fences and gates to block off your property.
- If you allow someone to rent from you or use a piece of your land, be sure you have a written agreement detailing their permissions.
- If you find a trespasser has taken residence on your property, see whether you can offer to rent the property to them. By putting a written rental agreement in place, you can prevent the trespasser from claiming adverse possession.
- Contact an attorney for assistance if you suspect a trespasser is taking up residence on your property.
Why It’s Important to Know About Adverse Possession
If you own a property or aspire to own property someday, you know that there are a wide range of responsibilities that come with it. Adverse possession isn’t as well known and may not be as common as some other issues that can arise in real estate transactions. However, you should be aware of the risks so you know how to prevent claims of adverse possession from impacting you.
Frequently Asked Questions
What are the criteria for adverse possession?
What is the logic behind adverse possession?
What is the limitation period of adverse possession?
The limitation period refers to the amount of time that must pass before adverse possession can be claimed. The limitation period varies by jurisdiction but typically ranges from 10 to 20 years.
