How to File For Adverse Possession?

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How to File For Adverse Possession?

To regain possession of your property, the rightful owner must take the neighbor to court. An experienced litigation attorney will assist you in proving your case, guide you through the claim, and assist you in how to file for adverse possession.

 

Adverse Possession: What does it mean?

In common law, adverse possession refers to someone using another’s land for a purpose other than theirs. Possession simply means that the person used the land as his or hers, taking possession of it. One owner may use land that belongs to the owner next door. Someone can infringe on another’s property.

For example, someone may erect a fence or shed on that neighbor’s property. A person might start using land for gardening or other purposes. It is common for homeowners to have their land occupied for years, sometimes decades. It will only become apparent after a survey and a sale occur.

 

Adverse Possession: How It Works?

How to file adverse possession? It is important to claim adverse possession, a possessor must file an action to note that adverse possession rights and conditions vary by country. For example, in the US, adverse possessors must meet five main conditions to maintain ownership.

The original owner can regain control of their property during adverse possession through legal action. According to English law, the original owner loses their right to recover the property if they fail to exercise their rights and attempt to recover it within a specified period.

Lawsuits have changed the length of the rules over the years. For example, the period available to the original owner in the US varies from three to forty years.

In addition to real property, personal property can also face adverse possession. However, the rules in such situations are stricter, and the legal owner is typically more likely to prevail. For example, a work of art may face adverse possession.

 

Adverse Possession and Its Importance

Property owners need to understand adverse possession because if they don’t use their land, they can suffer adverse possession. Furthermore, if you are interested in a specific property, you may wish to become its legal owner if you are aware of the regulations regarding the property.

It is essential to have adverse possession because it ensures effective use of land so that if a legal owner declines to use the land, someone else can take it over and make optimal use of it.

 

Adverse Possession Legal Requirements

The original owner of real property may not have to pay anything to acquire the property. There may be considerable costs involved in meeting the requisite conditions.)

Adverse possession is an effective acquisition method when five conditions exist:

  • The person asserting adverse possession must assert that his interest is hostile to the original owner’s.
  • He must possess the property,
  • The possession must be open and notorious,
  • Continuous possession,
  • And exclusive possession.

 

Possession with hostile intent

The case of Jean and Jacques is that they are tenants in common on the same farm. Jean decides to move to the city, but Jacques continues to work on the land, paying taxes and the mortgage and claiming adverse possession. After many years, Jacques files a claim for title, claiming he owns the land outright.

As his possession was not hostile to him, he would lose. Possessing the land without permission and intending to claim ownership is hostile. Possession by one cotenant is permissive since either cotenant has a legal right to possess the land.

As an alternative, let us suppose that Jean and Jacques are neighboring farmers, each with his acreage, and Jean constructs a fence over Jacques’s land twenty feet over just to be safe. Jacques’s possession of the land is hostile and adverse.

 

Possession in Actual

Not only must the possession be hostile, but it must be actual as well. Possession must occur, and the possessor must enter the property. Many state statutes define the type of possession allowed—such as substantial enclosures or cultivation and improvements. When determining whether the claimant possessed the land (e.g., by grazing cattle on it each summer), the courts look at the circumstances of each case.

 

Possession in an open and notorious manner

By using the land openly, the adverse possessor can be sure that the owner can recognize that his land is in dispute and inform people in the area that the adverse possessor is using it.

The owner may notice if he chooses that an enemy has invaded his territory and set up a standard of conquest if a flag is unfurled and kept flying by an adverse possessor.

 

Possession on an ongoing basis

Most states require that adverse possessors use the land continuously for at least twenty years, not intermittently. The successor adverse possessors may add time to the time they claim possession if the adverse possession is passed down to heirs or sold.

If the original owner sells his land, the time required to prove continuous possession will not lapse. Any time before the twenty-year period ends, the original owner can evict the adverse possessor and terminate the period.

 

Possession in exclusive possession

Due to the lack of entirely adverse or hostile sharing of the land, it is insufficient to ground a claim of legal entitlement as adverse possession since the sharing is not adverse or hostile. As Jean enjoys weekly picnics, Jacques also uses the lot for picnics. Because this use is neither continuous nor exclusive, it is insufficient to claim adverse possession.

 

How to File an Adverse Possession Claim?

To claim adverse possession a possessor must file an action to allows a person to claim ownership after possessing a piece of land for a certain period without the legal owner’s permission. Depending on the jurisdiction, adverse possession procedures and requirements may differ.

 

How to File an Adverse Possession Claim

 

Researchers’ preliminary findings:

 

·         Checking Land Records

When filing a claim, verify that legal ownership of the property is essential and ensure that the land has not recently been transferred or sold.

 

·         Identifying the Legal Owner

Make sure you know the current legal owner of the property. Knowing who you are suing is crucial since you must know whom you’re suing.

 

Evidence collection:

 

Photographs

Take dated photos demonstrating your possession and any improvements made to the property over time.

 

Witness Statements

Obtain statements from neighbors or other individuals who can attest that the property has been in your possession for a long time and is not in foreclosure.

 

Bills or Receipts

Ensure you keep property maintenance records, including tax payments, utility bills, and repair or improvement receipts.

 

Paperwork file adverse possession claim:

 

Where to File

If your claim involves land or property, file it at a local land or property registry office or in the appropriate court.

 

Required Documentation

Gather and submit all your evidence and any required forms or applications. You may need to file a formal legal complaint, depending on the jurisdiction.

 

Challenges to face:

 

Legal Defenses against Adverse Possession

Prepare for challenges from the legal owner and other interested parties. Your opponent may argue that you haven’t met all the adverse possession requirements or raise other arguments.

 

Mediation and Negotiation

Mediation and negotiation are alternative approaches to lengthy court battles when there is a dispute. You can save time and money by using this method.

 

In the process of deciding:

It might take several months or even years for the appropriate authority or court to decide on your claim once you’ve filed it and provided all the necessary evidence.

 

Claim finalization:

Following the success of your claim, you will need to take additional steps to complete your ownership. You may have to update your property records, pay taxes, and ensure all legal formalities are in order.

 

Preventing Adverse Possession

There are several easy steps you can take as a landowner to prevent a trespasser from acquiring property ownership:

  • Mark the boundaries of your property. Keep a regular eye out for signs of trespassers. To prevent adverse possession claims, you may need to post “no trespassing” signs and block entry points with gates.
  • Provide the trespasser with a rental offer. The trespasser cannot claim adverse possession of the property if they have a valid rental agreement.
  • Affirm the use of your land in writing by granting written permission and receiving a written acknowledgment.
  • Be quick to act. Generally, if a trespasser has been on your land for a specified time and you want to file a lawsuit, you must act before that period has elapsed.

 

Homesteading Versus Adverse Possession

In practice, adverse possession is very similar to homesteading. Homesteading is granting new owners rights to government-owned lands or properties that do not have a clear owner on record, provided they use and improve them. If a homesteader doesn’t use the land, it can be lost. Similarly, adverse possession frees up land with unclear titles to function productively.

There are ways in which adverse possessions can also cause harm, though they cannot be. In the case of an informal easement between two farms, where one farmer’s fence contains an acre of the neighbor’s land, the farmer using it can claim adverse possession if no written easement agreement exists to encroach on the neighbor’s land.

 

Adverse Possession Statutory Period

The state determines the adverse possession period. As long as there is no gap in time between an adverse possessor’s adverse possession period and a previous possession period, many jurisdictions allow the adverse possessor to “tack on” their adverse possession period to the previous possession period.

An infant, an inmate, or a landowner deemed insane will not be eligible for a statutory period. While the statutory period is in effect, the landowner may continue uninterrupted if they suffer from one of the above conditions.

It is necessary to meet all the elements of adverse possession during the statutory period. However, adverse possessors have the right to use their property in a manner consistent with the type of property they possess. Even if it only serves as a ski lodge during the winter months, an adverse possessor can continue using it.

 

Keeping Property Safe from Adverse Possession

The owner of a record should consult a professional survey to determine boundary lines and regularly look for encroachments on their property to avoid adverse possession claims. Among the signs of occupation to look for are driveways, sheds, and other structures the owner didn’t build, gardens that they didn’t plant, compost piles that they didn’t, and landscaped or mowed areas that the owner didn’t maintain.

A record owner who thinks an adverse possession claim may be possible should confront the trespasser and show that the adverse possession elements were not met.

 

Ways to accomplish

There are various ways to accomplish this, including time-stamped photos of posted no-trespassing signs, written correspondence granting permission to trespassers to use disputed lands for a certain period, or photos that show possession of the land by building a fence along boundary lines.

Record owners must assert their property rights against trespassers to protect their property rights.

It is often necessary to file an action for ejectment against the trespasser if the trespasser ignores the confrontation. Finally, when suspecting adverse possession claims, you should always seek legal counsel to ensure you protect your property in any way possible.

 

FAQs about Adverse Possession

 

Is there a time limit on adverse possession?

One jurisdiction may impose a three-year limit, while another may impose a 30-year limit. The average time limit is ten or twelve years.

 

Adverse Possession: Who is Eligible?

In cases where specific requirements are met, like being in possession for a sufficient period or paying taxes on the property. Anyone possessing land owned by another may claim adverse possession and acquire valid title. There are differences between jurisdictions in these requirements.

 

Bottom Line

It can be confusing to understand adverse possession. When purchasing real estate, you should always verify that no adverse possession claims exist. You should also obtain a new land survey to verify the property boundaries. In case of a property dispute, you should consult a professional.

Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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