Adverse Possession Law

Adverse possession is a concept in real estate law in which title to another’s real estate property can be gained through possessing the land for an extended period of time. Unlike traditional real estate transactions in which compensation is offered for the land, adverse possession involves gaining the land by using it in conflict with the true owner’s rights for a specified period of time. During this period of time, the user of the land may technically be trespassing. After this period of time, the true owner may lose his or her ownership of the land. The necessary time required for adverse possession varies by jurisdiction. For example, it may need to be five, seven, or ten years of use, or some other length of time.

Adverse possession exists to put a statute of limitations on title disputes. For example, a landowner can be assured of his land without fear that long-lost heirs of a former owner from many years past can come forward and gain the title back to the land. With adverse possession, the person occupying the land for many years has claim to it.

Adverse possession is based on the doctrine of laches, which means that failing to assert a claim or right to the land for an unreasonable and unjustified time cannot cause disadvantage to another (i.e., be taking title away from the landowner who assumed that long-lost heirs would not come back to take his land years later). If the true landowner (the long-lost heir) does not enforce their property rights in a timely manner, they may permanently lose their interest in, or title to, the property.

Adverse possession can be used not only for plots of real estate, but also for sections of this land. For example, if an error in determining the specific property line causes a neighbor to build a house on your land, and you notice it and do not stop him, he may gain permanent claim to that section of your property. In order to stop the adverse possession, you must keep then neighbor from completing the house. The same principle applies to other improvements on the land.

Adverse possession is sometimes called “squatter’s rights”. If a squatter stays on the property for the amount of time necessary for adverse possession, and is not removed during this time period, the squatter may acquire title to the land. In order to gain title in this manner, the squatter must not have been removed from the property during this period, or the clock will start over. In addition, the legal owner can avoid adverse possession by giving temporary permission to the squatter, or by renting the property to the squatter.

There are five requirements to gaining land through adverse possession. These include: actual possession of the property, exclusive use of the property, open and notorious use of the property hostile or adverse use of the property, and continuous use of the property. In order to claim adverse possession, you must use this land as a property owner might; merely walking on the land does not establish this. Your actions must change the land, such as clearing, planting, mining, fencing, or constructing a building. These actions must be clearly visible, establishing that the legal owner could or should have known that the land was being used. Renters, hunters, or others who use the land with permission of the owner cannot take the property through adverse possession.

Charles Lee Iner, RLS
April 2009