Adverse Possession Guide

By PropertyClub Team
May 6th 2022
Adverse possession is commonly associated with squatters gaining ownership of a property after living there for an extended time and meeting the necessary legal requirements to claim adverse possession. But the legal doctrine is far more nuanced and even a neighbor who puts up a fence three feet over the boundary line or a neighbor who has been using your garage for several years without your permission could make the legal argument that they now own the property over the boundary line or garage, even though they don’t.

hash-markTable of Contents

What is Adverse Possession?
How Do You Gain Ownership of a Property Via Adverse Possession?
The 5 Requirements for Adverse Possession
Is Adverse Possession Automatic?
How to Prevent Adverse Possession of Your Property

hash-markWhat is Adverse Possession?

Adverse possession is a legal doctrine that permits a person to claim ownership of a property owned by another person. Specifically, adverse possession laws allow a trespasser can enter into another person’s property, occupy it for a period, and claim legal ownership of the property. This is legally defined as adverse possession.

Trespassers don’t necessarily need to intend to permanently possess the property when they initially enter the property to interpose an adverse possession claim. Also, trespassers can take possession of just a small section of the property up to the entire property. In some circumstances, adverse possession happens as a genuine mistake. For example, due to an incorrect deed or mistaken belief, a neighbor may extend their backyard onto their neighbor’s property. 

Essentially, the doctrine of adverse possession favors the productive use of land and punishes property owners who do not exercise and enforce their property rights promptly. 

hash-markHow Do You Gain Ownership of a Property Via Adverse Possession?

Each state has its own legal test for what constitutes a viable adverse possession claim. As such, you should refer to your state laws regarding adverse possession for additional information. Keep in mind that in addition to the general requirements discussed below, some states, like New York, require the trespasser to pay the local property taxes on the land during a specified period (in New York, it’s 10 years). 

hash-markThe 5 Requirements for Adverse Possession 

  • Hostile
  • Actual
  • Open and notorious
  • Exclusive
  • Continuous occupancy of the property for a specific amount of time

Hostile Claim

First, the adverse possessor’s claim must be hostile and adverse to the property owner’s interest. In other words, if the legal property owner has permitted the person to use the property, then the occupancy is not considered to be hostile. Courts across the country generally follow one of the following three definitions of “hostile” adverse possession. 

  • Awareness of trespassing: This simply means that the trespasser understands and knows that their use of the property is trespassing, and they have no legal right to the property. 
  • Good faith mistake: This rule requires that the trespasser made a good-faith mistake, such as by relying on an invalid deed. 
  • Straightforward Occupation: This rule defines “hostile” as the mere occupation of someone else’s land. The trespasser is not required to know that the property belongs to someone else. This is the most commonly used definition of hostile in most states in the country. 

Actual Possession of the Land

Virtually all jurisdictions require that the trespasser show actual possession of the land, that is, be physically present on the land and, to some extent, treat the property as if they were an owner. The trespasser can typically prove this by showing proof that they tried to renovate the property, maintain it, or make improvements to it. In states like New York, this is partially proven by the trespasser paying the local property taxes for ten years or more. 

Open and Notorious Possession

Next, the trespasser’s occupancy must be “open and notorious.” This just means that the trespasser’s occupancy must not be in secret but must be done in a way where anyone could find out if they wanted to. Keep in mind that the property owner is not required to have actual knowledge of the trespasser’s occupancy for a trespasser’s use of the property to be open and notorious. 

Exclusive and Continuous Possession

To qualify for adverse possession, the occupant must occupy the land exclusively. In other words, it cannot be shared with the public, another person, or the rightful owner. Occupancy must be continuous and must not be uninterrupted. In other words, the trespasser cannot use the property and then return it later and attempt to claim adverse possession of the property according to the state statutory timeframe. Additionally, the adverse possessor must use the property in a manner that is consistent with the type of property that they are possessing. For example, a farm must be used consistently as a farm, year-round, etc. 

Time Requirements

Each state has its own requirement for how long the trespasser must occupy the land before claiming it under their state’s adverse possession laws. This time frame can range from three to twelve years. Several states allow the trespasser to tack on their adverse possession claim to a previous possessor claim, as long as there is no gap in between the two occupants. Additionally, if a property owner is underage, incarcerated, or otherwise mentally incapacitated. The statutory period will not begin running. 

hash-markIs Adverse Possession Automatic?

In most states, Adverse possession is not automatic and needs to be awarded in court. In most cases, property ownership issues arise when the presumed owner is trying to sell the property or otherwise transfer ownership of it. Commonly, when a title company researches the chain of title for a property, it may discover a cloud of the title and refuse to issue insurance on the title transfer. In that event, if the parties cannot reach a settlement agreement, the matter may end up in court. As such, adverse possession claims are not automatic and must be proven in court before the court will award possession of the property to the adverse possessor. 

hash-markHow to Prevent Adverse Possession of Your Property 

The best way to prevent an adverse possession claim against your property is to prevent trespassers in the first place. In other words, as a property owner, you should, at all times, keep an eye on your property. If you suspect that someone is attempting to adversely possess your property, the first thing you should do is call the police if the trespasser does not leave after receiving a warning.

Next, you should check and see whether or not they have made tax payments toward your property. Additionally, property owners can post “no trespassing” signs and block entrances with gates, fences, and other barriers. While posting signs is an excellent way to fend off trespassers. It is in no way protects you against an adverse possession claim. In other words, you must be aware at all times who is in possession of your property. 

If all else fails, you should hire an experienced real estate attorney who can help you sort out the issue. The worst-case scenario is that you will have to file a case to eject the trespasser from your property. Similarly, you may have to file a petition with the court to remove a structure from your property. In any event, you must act before the trespasser has a viable adverse possession claim. This means that they have occupied the premises long enough under your state law to claim ownership of the property.

Lastly, keep in mind that adverse possession claims are not available in all situations and depends on state laws.