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Adverse Possession Explained: Everything You Need To Know

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Published on February 3, 2021
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In the case of adverse possession, someone else could have the legal right to ownership of your land. Although there are many common law requirements that must be met, a trespasser could seek legal ownership of your property.

Here’s what you need to know about adverse possession.

What Is Adverse Possession?

Adverse possession is a legal doctrine that grants an individual possession of the land that another person owns. After meeting the necessary law requirements, adverse possessors are able to claim official title ownership from property owners who neglect their property rights.

The more common colloquialism to describe this legal process is squatters’ rights.

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What Does Adverse Possession In Real Estate Look Like?

It may seem unbelievable that a trespasser could truly take legal ownership of your land through adverse possession. However, many homeowners face this threat.

A few common ways that you could encounter adverse possession include:

  • A neighbor building a fence, garage, or other encroachment on your property.
  • The repeated use of a private walkway or road by a trespasser.
  • A second property occupied by trespassers that the true owner has neglected.
  • A gardener using a vacant stretch of fields to grow crops for an extended period of time.

It is easy to see how adverse possession could creep into the lives of many homeowners.

How Does Adverse Possession Work?

Whether the trespasser has chosen this path to acquire a title for the property through adverse possession intentionally or unintentionally, they will need to satisfy several requirements. Although the requirements vary based on the state, homeowners should consider five common law requirements.

1. Open And Notorious

The trespasser will need to have possession of the land in an open and obvious way. It should be clear to anyone that checks on the property that someone is using the land without their permission.

If the trespasser has been using the property in secret, they will not be able to succeed in an adverse possession claim.

2. Hostile

The term hostile may arouse a feeling of obvious animosity or ill intentions on behalf of the trespasser. However, the trespasser doesn’t need to be unfriendly. Instead, they need to be clearly violating the rights of the legitimate property owner.

With that, the infringer could be using the land without knowing that someone else owns it, they might be trespassing intentionally, or it’s possible they’re making a mistake in good faith based on a faulty deed in their own possession.

3. Continuous

Typically, the state will have a set number of years in which the trespasser must continuously use the property in question. In some cases, the property can be maintained by a series of adverse possessors if there is some relationship between them.

4. Actual

The original owner must prove that the adverse possessor is actually using their property.

5. Exclusive

The adverse possessor cannot share the use of the property with anyone else unless there is a relationship between them.

How Can You Avoid Adverse Possession?

No one wants to deal with a legal battle involving adverse possession. Luckily, there are several ways to take preventative measures against these claims.

Here are some ways to protect your property.

Stake Out Your Properties

You can regularly stake out the outer limits of your property. When you take the time to identify your property lines, you should also inspect your land regularly. With a close eye on the boundaries of your land, you can prevent any encroachment from would-be adverse possessors.

As you stake out the property, you may want to post “no trespassing” signs to inform others of the property boundary. Although many states will not find a “no trespassing” sign sufficient to prevent an adverse possession claim, it could dissuade accidental trespassers.

Rent Out Your Space

If you find a trespasser, offer to rent out a space to them. With a rental agreement in place, the trespasser cannot claim any adverse possession rights.

Grant Written Permission To Use Your Land

If you grant trespassers explicit written permission to use your land, this can prevent any adverse possession threats. Make sure that you receive their written acknowledgment of your permission to use the land.

What Is The Process For Claiming Adverse Possession?

If you want to claim adverse possession, then you’ll need to get familiar with the rules in your particular state.

Each state has different rules surrounding the required statute of limitations for occupation periods. For example, in Florida, you’d need to occupy a property for 7 continuous years. But in Texas, you’d need to occupy the property for 10 continuous years before having a claim. There can be additional rules depending on the original owner – for example, underage owners could require a longer period of time.

After you meet the legal requirements of adverse possession, you will likely need to sue for a quiet title, a circuit court action or lawsuit filed to establish or settle the title to a property. If you win the bid in court, you will become the legal titleholder. But you may need to pay any outstanding property taxes in certain states before your ownership is finalized.

Are There Any Exceptions To Adverse Possession?

As with most legal processes, there are some limitations to the power of adverse possession. A few includes:

  • Government-owned land or public property, which cannot be taken by adverse possession
  • Easements are occasionally confused with adverse possession but are separate legal situations. A property owner could be forced to share their property with entities that secure an easement.

If you are facing an adverse possession situation, a real estate attorney would be able to advise you on the details of your unique case. Don’t hesitate to reach out to a real estate attorney if you need help!

Final Thoughts On Adverse Possession

Adverse possession can put homeowners in a difficult situation. But with regular monitoring of your property, you should be able to avoid any adverse possession situations.

If you are interested in learning more about the responsibilities that come with homeownership, then take advantage of the free Rocket Mortgage® Learning Center.

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