Most of us think that land we bought and paid for will be ours forever. Although they are rare, there are some instances where a continual trespasser can gain legal title to property if they can meet certain additional conditions. This legal concept is known as “adverse possession,” and this can sound pretty scary for people who own a large parcel of land or a smaller piece they don’t visit very often. With adverse possession, someone gains title (ownership) to the real estate by continuously occupying it for a certain length of time. In order to acquire property using adverse possession, you need to treat the property as if you own it by making improvements to the property and, in some states, paying taxes. While new to most laypeople, the idea of adverse possession is a fairly old legal doctrine intended to encourage landowners to make beneficial use of their land or keep a close eye on it if they aren’t using it.
Adverse possession is sometimes called squatter’s rights, although squatter’s rights are a colloquial reference to the idea rather than a recorded law. Adverse possession laws allow a trespasser to gain legal title to property if he or she openly inhabits and improves a property, or even a small part, for a determined amount of time. Utah law requires an individual to occupy property for at least seven years before the possibility of ownership changing hands. Adverse possession is legal doctrine that allows a person who possesses someone else’s land for an extended period of time to claim legal title to that land. If successful in proving adverse possession, the claimant is not required to pay the owner for the land.
To successfully claim land under adverse possession, the claimant – also called the plaintiff in the quiet title action – typically must demonstrate that his or her occupation of the land meets the following requirements:
Possess the land continuously and exclusively: A single adverse possessor must remain on the property continuously. This does not mean that the adverse possessor has to stay on the land every hour of every day; rather, it addresses the total amount of time that the adverse possessor makes reasonable use of the property. For example, if the state in question requires ten continuous years, then the adverse possessor must be in possession of the land for ten years in a row, and not two periods of five years with a two year break in between. Courts have held that seasonal use is acceptable for continuity as long as it is in a manner consistent with how the true owner would use the property. To claim adverse possession, you can’t stop into someone’s property once every six months. Instead, the law requires that you really possess it. This means two things:
I. You continuously occupy the land. You can’t abandon the property and then return later. Each state has a time period for how long you must continuously occupy the land.
II. You exclusively occupy the land. You can’t share possession with the actual owner of the property or with strangers
Interruption of continuous possession deprives the adverse possessor of the legal effect of his or her prior occupancy. The statute of limitations will begin to run again from the time he or she starts actual, open, hostile, notorious, and exclusive possession. The length of the interruption is insignificant as long as it disturbs continuous possession. At that time the law restores constructive possession of the land to the true owner.
Actual Possession: The adverse possessor must be in actual possession of the land in question. It is not enough that the adverse possessor plan to occupy the land, or learn about the land, the adverse possessor must actually possess it physically.
Occupy the land in a hostile fashion: Hostility, as a legal term does not necessarily mean nasty or aggressive. Instead, it means that the possession infringes on the true owner’s rights. A possession is not hostile if the true owner gives permission for the possession. Adverse possession requires that you make a hostile claim on the land. This means different things in different states.
Occupy the land in an open and notorious fashion: Many courts interpret the “open and notorious” requirement to mean that the trespasser must act in a manner consistent with ownership. The main point of this requirement is that it is intended to put the true owner on notice about the trespasser. If the trespasser acts secretively or sneakily, there can be no adverse possession. You can’t be hiding on the property if you want to claim it using adverse possession. Instead, it must be obvious to anyone that someone is living on the land. Visible changes to the property should tip people off that someone is living there. Accordingly, take photographs or get witness testimony that they saw you coming and going from the property regularly.
Exclusive: For the purposes of adverse possession, “exclusive possession” means the person possesses the land for himself or herself and not for others. Courts have generally cited an adverse possessor’s sole use of a property as one factor upholding an adverse possession claim, although as a general rule, the exclusivity requirement might be interpreted to apply only against the true owner of the property. In other words, an adverse possessor may be able to share the property with another individual who is not the true owner.
Pay taxes on the property. In some states, you must actually pay taxes on the land in order to qualify for adverse possession. In other states, the amount of time you must continuously occupy the land will be reduced if you pay taxes. Make sure to hang onto copies of your tax assessment and canceled checks or other proof that shows you paid taxes on the property.
Read your state law: In order to understand your state’s specific requirements, you should read your state’s laws on adverse possession.
Perform a title search: You need to find out exactly who owns the property so that you can sue them in court. You can hire a title company to perform a title search. When you get the title report back, look to see who owns the property. There are many different interests people can have in the property. For example, someone might claim an “easement” on the property. This means that they have the right to use a portion of the property for a certain purpose (e.g., use a driveway to reach their own piece of property). You will need to sue all people who have an interest in the property. This includes the owner, as well as anyone with an easement or other interest. Your title report should identify all of these people.
Statutory Period: The time period of the statute of limitations that must expire before title can be acquired by adverse possession varies from state to state. No statute will begin to run until the adverse claimant actually possesses the property in question under color of title or claim of right, where necessary. As of that time, the landowner is entitled to bring a lawsuit against the possessor to recover the property. The adverse possessor must occupy the property for the full statutory period. In jurisdictions that also require title, it must coexist with possession for the complete period. If the statute of limitations has been suspended for example, because there is a lawsuit pending between the owner and the claimant or the owner is insane, an infant, or serving in the armed services that amount of time will not be counted toward the time necessary for the acquisition of title.
Breaking Down Adverse Possession
Adverse possession and the requirements to prove it can vary widely between jurisdictions. In many states, proof of payment for the taxes on a property and a deed are essentially required for the claimant to be successful. Each state has a time period during which the landowner of record can invalidate the claim at any time. For example, if the state threshold is 20 years and the landlord paints or pays for other maintenance on the house in question in the 19th year, then the claimant will have a difficult time proving adverse possession. That said, landowners are advised to remove the possibility of adverse possession as soon as possible by having signed agreements for any use of owned property.
Adverse Possession and Homesteading
Adverse possession is similar to homesteading in practice. In homesteading, land that has no owner of record or is government owned is granted to new owners provided they are using and improving it. If a homesteader doesn’t use the land, they can lose it. Adverse possession can operate in a similar manner by freeing up land with unclear title for productive use. Of course, adverse possession can also be abused in ways homesteading cannot. If there is an informal easement between two farms where one farmer’s fence has an acre of the neighbors’ land in it, for example, the farmer using it can claim adverse possession to essentially bite off that chunk of land if there is no written easement agreement.
Adverse Possession and Intellectual Property
Adverse possession has been proposed as a possible solution to discourage abuses of intellectual property rights like cyber squatting, excessive copyright and patent trolls. Applying adverse possession to intellectual property as well as physical property would force the abusers to put more resources into actively using their portfolio of trademarks, patents and so on, rather than just sitting on them and waiting for the actual innovators to step in their territory.
Although many people find the doctrine of adverse possession shocking, three principle rationales have been advanced for its justification:
1. Adverse possession is part of the general body of law known as the statute of limitations, which protects individuals against stale claims.
2. Because the law does not want everyone to walk around paranoid about being sued for something that happened decades ago, it generally establishes time limits under which claims can be brought, for most claims.
3. Adverse possession validates disputed land titles where official records do not match reality.
No Claims Against Government Land
Land held is generally immune from adverse possession actions. That means that title to public lands usually can’t be acquired by adverse possession. Compulsory acquisition is the power of government to acquire private rights in land without the willing consent of its owner or occupant in order to benefit society. This power is often necessary for social and economic development and the protection of the natural environment. Compulsory acquisition requires finding the balance between the public need for land on the one hand, and the provision of land tenure security and the protection of private property rights on the other hand. Compulsory acquisition is inherently disruptive. Even when compensation is generous and procedures are generally fair and efficient, the displacement of people from established homes, businesses and communities will still entail significant human costs. Where the process is designed or implemented poorly, the economic, social and political costs may be enormous.
In conclusion: Adverse possession encourages landowners to be vigilant and responsible about their land, as part of their social responsibility in avoiding waste. It’s typically much more difficult to obtain ownership of registered land. The owner will have had to make the squatter believe that they in fact owned the land, had the right to live there or had the right to use that land as if it were their own for the minimum period of 10 years. It could be a risky move, as when an application for adverse possession was made and rejected, the true owner has the right to evict the squatter or disallow them to use the land. If the owner does not evict the squatter and allows them to continue to occupy the property or land for a further two years after their claim was rejected without change, the squatter would be entitled to register as the owner once again. Ownership of personal property may be acquired by adverse possession if the same requisites are met. The claimant must possess the property actually, openly, notoriously, exclusively, hostilely, under claim of right, and uninterrupted for the statutory period.
Adverse Possession Lawyer Free Consultation
When you need legal help with an Adverse Possession real estate matter, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
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West Jordan, Utah
84088 United States
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