Adverse possession is a concept in real estate law in which someone may be able possess all or part another’s titled real estate property by occupying 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, however, 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 could 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, if you have owned a piece of land for some time, and a long-lost heir of a former owner from many years past comes forward to try and claim legal title to the land, adverse possession laws may prevent you from losing title to the property.
Adverse possession is based on a legal principle called 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). Thus, if the true landowner (the long-lost heir) does not enforce his/her property rights in a timely manner, the heir may permanently lose interest in, or title to, the property.
Adverse possession may be used not only for plots of real estate, but also for sections of the land. For example, if an error in determining the specific property line causes a neighbor to build a structure on part of 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 structure, or file a claim before the adverse possession laws apply.
Adverse possession is sometimes referred to as “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 have use this land as a property owner might; merely walking on the land does not establish a claim. 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.