Adverse Possession Real Estate

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Adverse Possession Real Estate

A legal principle called adverse possession may allow you to lose ownership of any part of your property to someone else. Still, it can also happen in cases of adverse possession. Learn about this legal principle and how to deal with adverse possession real estate if someone makes an adverse claim against your property.


Defining Adverse Possession: How Does It Work?

It refers to a law that grants a person ownership rights over someone else’s land if certain conditions apply. For example, you must occupy, use, maintain, or improve a property owned by someone else for a specific period.

Adverse possession is different from easements. People grant easements as rights, like using a driveway. However, adverse possession can also refer to the owner using the property without the owner’s consent.

It is possible to acquire adverse possession unintentionally, though, and it isn’t always malicious. If neighbors accidentally build a fence on part of your property and start using the land inside, they could claim adverse possession. If a neighbor takes care of a garden that accidentally crosses the property line for a certain period, they may be able to claim adverse possession.


Adverse Possession: An Understanding

The adverse possession of property occurs when one person takes possession of another’s property intentionally or unintentionally, with or without the owner’s knowledge.

When people enter someone else’s land without permission, they are called trespassers or squatters. These individuals knowingly occupy the ground and make it their home. Adverse possession can also occur unintentionally.

For example, homeowners may construct fences separating their yards without realizing they have crossed over and encroached on neighboring property lines. The adverse possessor, or the disseisor, can claim that property. If the claimant proves adverse possession, they will not have to pay the owner.


Squatting Vs. Adverse Possession

Taking over property ownership by adverse possession is legal while squatting or occupying an abandoned or unmonitored space without permission is illegal. If a squatter intentionally occupies an abandoned home for a certain period, adverse possession may accrue by the settler. The laws of a state may apply, which could fall under what’s referred to as “squatter’s rights.”


Requirements for Adverse Possession

In some states, adverse possession can occur by possessors who have occupied and used property, intentionally or not. The conditions that characterize it vary from jurisdiction to jurisdiction. It is not uncommon for possessors to be aware that they are trespassing on another person’s property to assert adverse possession. In some states, adverse possession claims can be filed after just two years or up to 30 years.

Adverse possession claims typically require the following requirements:

  • Claiming ownership is more manageable if someone only uses a property for a few months a year. For instance, if a person only occupies the property for three months yearly, he cannot claim adverse possession.
  • Hostile use: This term refers to a claim by a possessor who has used the property without permission. The owner must show that they have never permitted the claimant to use the property.
  • To make a claim, you must be the only person using the property and not let anyone else use it.
  • Open and notorious: As opposed to concealing his use of the property, the possessor must be forthcoming about his claim. Neighbors or onlookers should be able to tell if someone uses the property. The person using it should do things the owner usually does, like getting mail there.
  • Actual possession: Similarly, the possessor who makes a claim must maintain or upgrade the property, including mowing the lawn, repairing structures, or paying property taxes.

It is the burden of proof on the possessor in most jurisdictions, so he must demonstrate that he meets all the requirements for adverse possession.


Preventing Adverse Claims Against Your Property

Getting to know exactly what you own — the exact boundaries and property lines — is the first step you can take to prevent adverse possession claims. If you’re unsure, surveying your property and marking its limits can be helpful.


Preventing Adverse Claims Against Your Property


This way, you’ll know what you own and what your neighbors own. If you have a survey, you can learn about issues before they become claims-worthy. For example, you might discover a misplaced fence.

It would be possible to prevent an adverse possession claim against your property by granting explicit permission to your neighbors to use your property in a particular way. You can do this by writing it down or securing a legal easement. This explicit permission renders the use of your property not hostile, which would stop any claim of adverse possession of your property.


Maintain the property

To ensure nobody uses a property you don’t often use, visit and check it regularly or ask a trusted person to do this for you. Maintain the property, as well — you may be able to use that evidence if you need to retain ownership. You may also need to erect a fence or post a “no trespassing” sign to deter people from trespassing.

If you spot someone living or using your property, you must do something to eliminate the individual, which can be accomplished by contacting a lawyer. According to lawyer C. Scott Sulfur, if someone is staying at your property, you might have to write them a notice and keep a record of it. According to Pelz, this prevents the adverse possessor from using and possessing the property and also prevents them from acquiring it.

It’s very straightforward to avoid adverse possession claims once you know what you own, says a New Jersey-based attorney. He advises securing your borders and using legal methods to remove unauthorized individuals.


Homesteading vs. Adverse Possession

The concept of adverse possession is similar to the idea of homesteading. Homesteading is the act of taking possession of government-owned property or unclaimed property and improving it. Homesteaders can only retain their land if they use it. Adverse possession works similarly by freeing up land with unclear titles to be productive.

However, individuals can also abuse adverse possession in ways that cannot be done with homesteading. Farmers can claim adverse possession if their fence encroaches on a neighbor’s acre of land. A written agreement isn’t necessary if two farms have an informal easement and use the same fence.


Does Adverse Possession exist in all states?

All states allow adverse possession, although their requirements differ. There are significant differences between the two ownership types. These differences include how long control lasts, taxes paid, and having a document claiming ownership.

Generally, eastern states do not require additional documentation, but they may require property taxes. In the Western states, possession periods are shorter. However, there are additional requirements, such as taxes or deeds.

Each jurisdiction has its time limit, ranging from three years in Arizona to 30 years in Louisiana and New Jersey. The average time threshold is 10-15 years.


Who Can Claim Adverse Possession?

To claim another person’s land, specific conditions must be met. These conditions include controlling the ground for some time and paying taxes. If you do, you can get legal ownership of the land. The requirements differ from one jurisdiction to the other.

Property owners must understand adverse possession because it can lead to negative consequences if they fail to utilize their property. If you’re interested in a particular property, the rules for an unused property can help you become the rightful owner.

It’s important to know that adverse possession helps use land efficiently. Suppose a landowner is not using their property, and it becomes deserted. In that case, someone may take over and use the property effectively.

If you notice that part of a farmland has remained untouched for more than ten years, you decide to purchase it and actively farm it, putting it to good use.

Make sure to check for any extra conditions before you can succeed in obtaining adverse possession. You must also find out how long the original owner has to reject your attempt to own the property according to your local law.


If A Trespasser Claims Actual Possession, How Can He Prove It?

When someone like Suzy wishes to establish adverse possession of that lot, what can she do? She must cross the street regularly and start planting flowers and vegetables there.

She could either move her gardening equipment to the area and leave it overnight or enclose the area with a fence. We might store the equipment in a shed. To keep the lot well-maintained, water and prune regularly, at least once a week.

To meet adverse possession requirements, these acts must show actual possession of the land. Open and notorious possession elements are essential for adverse possession claims. Each piece alerts the actual owner that someone is claiming his property.

Bob can protect his rights by filing for eviction or calling the police if Suzy trespasses. If Bob is used to Suzy being there and doesn’t want to lose the house, he can let her stay and maybe charge her rent. Suzy can prove the land is hers if Bob doesn’t know he owns it or doesn’t mind if she takes it. But getting possession is the first step to owning it.


Prescriptive Easement Versus Adverse Possession


Possession under adverse conditions

Adverse possession transfers a portion of a person’s property to another. Adverse possession applies when someone openly and noticeably uses someone else’s property for 20+ years without interruption.

Under Massachusetts common law, individuals can only use the property for 20 years. Adverse possession happens when someone openly uses a property for 20 years and becomes the owner.


Easement with prescription

Prescriptive easements are comparable to adverse possession in that they confer certain rights on an asset to those using it for a prolonged period. Prescriptive easements differ from adverse possession because multiple parties can use the property. The prescriptive easement doesn’t give ownership, but it grants specific rights to the property.


Here are two examples

A closer look at two examples may assist you in understanding adverse possession from the prescriptive easement. The first case is about person A building a fence on person B’s property, which gives the person access to part of that property.

If person A uses the land exclusively for 20 years, like mowing it and maintaining the fence, they may claim it through adverse possession. Person A, who claims adverse possession, is granted the title to the portion of land originally owned by person B.

If person B has a driveway that person A openly uses to reach their property, person A may claim a prescriptive easement. It allows them to continue using person B’s driveway without actually owning the property where the driveway is located.


Bottom Line

As a result of border disputes, adverse possession, and prescriptive easements are common real estate law issues. Anyone making or defending such claims must have experienced legal advice. In a boundary dispute, an experienced real estate attorney can provide effective legal representation and help property owners establish their rights to whatever property is in question.

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