Adverse Possession: 10 Things (2021) You Should Know in Real Estate

Did you know that a trespasser can sometimes gain legal ownership of real estate just by occupying it via a concept known as adverse possession?

In today’s blog, we’re talking about this doctrine and how it impacts true property owners.

Here’s what you should know.

1. What is adverse possession?

Adverse possession is a legal doctrine that allows a person to claim a property right to real estate owned by another person.

Here are some examples of adverse possession:

bulletContinuous use by an outside party of a private road, driveway, or structure

bulletAgricultural development of an unused parcel of land

bulletAn encroaching fence or structure

The doctrine of adverse possession rewards the productive use of land by the adverse possessor rather than the true landowner who “sleeps on their rights.”

Sometimes, the adverse possessor is intentionally squatting on a property that is not being used by its true owner.

However, sometimes adverse possession can truly be an accident.

For example, if a neighbor has relied on a faulty property description in a deed when building a fence on your property, then they may have a claim to adverse possession without ever knowing they didn’t own the land.

This can affect ownership of just a few feet to hundreds of acres depending on the case.

2. What is the effect of adverse possession?

It should be noted that adverse possession alone does not result in the transfer of a legal title.

Rather, it gives the trespasser a vested property right in the area possessed.

Once a person meets the statutory requirements for adverse possession, he/she may then initiate a quiet title action.

This quiet title action is a lawsuit brought in a court that has jurisdiction over property disputes.

Quiet title can result in the trespasser obtaining legal title to the property or real estate.

3. What are the limits on adverse possession?

Adverse possession is not always available in every situation.

For example, government-owned land cannot be obtained through adverse possession.

Regardless of whether you are defending against or initiating a quiet title action suit, be sure to check the local laws regarding adverse possession before going to court.

4. How do adverse possession claims end up in court?

Adverse possession claims can end up in court when the legal ownership of a property or part of a property is contested.

For example, if a house is being sold and a title insurance company refuses to issue insurance because the neighbor’s garage is found to be standing on the property, then the property owners will need to clarify who has ownership over the land upon which the garage is built before the homeowner can sell their house.

In some cases, the property owner and other people involved may be able to work something out.

Other times, the issues may end up in court with the property owner suing the trespasser (even if the trespasser was unaware or well-meaning).

The trespasser may also bring a lawsuit themselves to “quiet title” and claim ownership to the real estate through adverse possession.

5. What are the legal requirements for a claim to end up in court?

There is a four-factor test that courts look at when evaluating adverse possession claims in real estate.

To qualify for adverse possession, the trespasser’s occupation of the land must check these boxes:

bulletHostile

bulletActual

bulletOpen and notorious

bulletExclusive and continuous for a certain period of time

Below, we’ll go into some detail about each of these elements of adverse possession.

However, it’s important to do your own independent research and see what your specific state has to say about its legal requirements.

For instance, some states also require that the trespasser has paid local property taxes on the land over a specified period of time.

bulletHostile Claim

Courts will follow one of the following three legal definitions of “hostile” when it comes to adverse possession.

1. Simple occupation:

This definition is followed by most states today and defines hostile as the mere occupation of the land.

In other words, the trespasser does not have to know that the land belongs to someone else.

2. Awareness of trespassing:

This definition of hostile requires that the trespasser is aware that his or her use of the property amounts to trespassing.

3. Good faith mistake:

Only a few states follow this rule, which states that the trespasser has made an innocent mistake in occupying the property in the first place.

bulletActual Possession of the Land

The second factor in this test states that the trespasser must “possess” the property, or be physically present, and treat the property as if he/she were the owner.

This is often established through documentation of a trespasser’s efforts to maintain the property and make improvements to it.

bulletOpen and Notorious Possession

This factor means that the adverse possession must be obvious to anyone that the trespasser is on the land (including a property owner).

For example, if a neighbor pours a concrete driveway two feet over the property line.

bulletExclusive and Continuous Possession

The trespasser must possess the land exclusively and cannot share the possession with strangers or the owner themselves.

This possession must occur without interruption for a certain period of time, and this time period varies based on the state’s statute of limitations.

Keep in mind that this length of time isn’t short either.

The District of Columbia has a 15-year requirement while Maryland has a 20-year requirement.

While it may sound alarming for someone to potentially come in and “steal” land that you have title to, it won’t happen over a matter of days or months.

Feel confident in the fact that any person claiming the property by adverse possession must be using the land in full view of the landowner for an extended period of time.

6. How do you prevent adverse possession?

If you’re a landowner and you’re worried about adverse possession of real estate, then it’s important to keep an eye on your property.

One way to understand whether someone has a possible adverse possession claim is to check property tax records.

This can indicate whether a person has made tax payments on your property.

To prevent someone from gaining property ownership, you can also follow these steps:

bulletPost “no trespassing” signs and block entrances to your property.

Often, this is the best way to deter trespassers from your land.

However, be aware that just having signs or gates in many states won’t protect against an adverse possession of real estate claim in many states.

bulletGive written permission for someone to use your land.

If you allow others to park, cut across, or garden/grow crops on your land, then make sure you give written permission to them and get their written acknowledgment in return.

This can allow you to defeat adverse permission claims.

bulletOffer to rent the property to the trespasser.

This eliminates any adverse possession claims while also helping you monetize the property you own.

bulletCall the police.

They can help you remove a trespasser from the land and take the next legal steps.

bulletHire a lawyer.

In order to eject the trespasser from the land, you may need to file a lawsuit.

You may also want the court to order a structure to be removed from your property.

The key is to act before the trespasser has been on your land long enough to make a successful adverse possession claim in your jurisdiction.

7. What’s the difference between adverse possession and homesteading?

Adverse possession can seem similar to traditional homesteading programs in practice.

In these free land programs, government-owned land (or land with no clear owner) is granted to new owners as long as they are using it and improving it.

However, if a homesteader doesn’t use the land productively, then they can lose it.

Adverse possession can work similarly in that land that is not being utilized may be put to productive use.

That said, with homesteading programs, there is a formal transfer between the two parties as well as agreed-upon terms.

Conversely, the adverse possessor can essentially take a chunk of land and claim for themselves.

This is not the case in homesteading.

8. How does “squatting” apply to adverse possession?

Adverse possession is sometimes described colloquially as “squatter’s rights”.

It’s a legal principle under which a person who does not have legal ownership to a piece of real estate may acquire title based on continuous possession or occupation of a property without the permission of its legal owner.

If this occurs, the property owner can recover possession of the property from the unauthorized possessor through legal action like ejectment.

However, under English law, courts have often ruled that when a squatter has occupied a piece of land without permission and the property owner has not recovered their right to the property for a significant period of time, then an entirely new title to the property can “spring up” in the name of the adverse possessor.

In other words, a squatter can become the property’s new owner.

For example, the state of Georgia allows squatters to obtain possession of property that is either neglected by the owner or occupied for a specific period of time (7 years for improved properties and 20 years for undeveloped land).

9. How does adverse possession apply to intellectual property rights?

Adverse possession does not just apply to real estate.

It has also been proposed as a potential solution to intellectual property rights like cybersquatting, excessive copyright, and patent trolling.

By applying adverse possession to intellectual property (in addition to physical property), it forces abusers to put more resources into actively utilizing their portfolio of trademarks, patents, etc.

Right now, it’s more common to simply sit on them and wait for actual innovators to step into their territory

10. How can I get help with trespassers on my land?

If you need more help with trespassers on your land, check out our article dedicated to this very topic, 12 Ways to Keep Trespassers Off Your Land in 2021.

Final thoughts

Adverse possession can be stressful for a landowner.

You may be thinking, “Does this mean my real estate is never safe?! Can someone just come, squat, and steal it?”

Never fear!

While adverse possession is a reality, there are also many ways to prevent it.

Being aware of the risk can help you prevent it and take steps to ensure that your land is properly protected.

Do you have any adverse possession stories?

Let us know in the comments.

And for more information on buying, selling, or investing in vacant land, check out our other resources below.

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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.

2 thoughts on “Adverse Possession: 10 Things (2021) You Should Know in Real Estate”

    • Hello Ashley,

      Please feel free to give me an email at [email protected]. However, I would recommend speaking with a local lawyer to see what your options are.

      Reply

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