What Is Adverse Possession?

The term “adverse possession” refers to a legal principle that grants title to someone who resides on or is in possession of another person’s land. The property’s title is granted to the possessor as long as certain conditions are met including whether they infringe on the rights of the actual owner and whether they are in continuous possession of the property. Adverse possession is sometimes called squatter’s rights, although squatter’s rights are a colloquial reference to the idea rather than a recorded law.

Understanding Adverse Possession

As mentioned above, adverse possession is a legal situation that occurs when one party is granted title to another person’s property by taking possession of it. This can happen intentionally or unintentionally with or without the property owner’s knowledge.

In cases of intentional adverse possession, a trespasser or squatter—someone who occupies another person’s land illegally—knowingly comes on to another person’s land to live on it and/or take it over. In other cases, adverse possession may be unintentional. For example, a homeowner may build a fence separating their yard without realizing they’ve crossed over and encroached on their neighbor’s property line. In either case, the adverse possessor—also referred to as the disseisor—can lay claim to that property. And if the claimant is successful in proving adverse possession, they are not required to pay the owner for the land.

Requirements to Prove Adverse Possession

The requirements to prove adverse possession tend to vary between jurisdictions. In many states, proof of payment for the taxes on a property and a deed is 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 an owned property.

To successfully claim land under adverse possession, the claimant must demonstrate that his or her occupation of the land meets the following requirements:

• Continuous use: Under this condition, the adverse possessor must show they’ve been in continuous and uninterrupted possession of the property in question.
• Hostile and adverse occupation of the property: Although this doesn’t mean that the disseisor uses force to take the land, they must show there is no existing agreement or license from the landowner such as a written easement, lease, or rent agreement.
• Open and notorious possession: The person seeking adverse possession must occupy a property in a manner that is open, notorious, and obvious. The true owner is not required, however, to be aware of the occupation.
• Actual possession: The possessor must actively possess the property for the state’s predetermined statutory period, which may vary from three to 30 years. Possession may involve maintaining the land and—depending on state law—paying taxes.
• Exclusive use: The property is used solely by the disseisor, excluding any others from using it as well.

How to Prevent Adverse Possession

If you are a landowner, you can prevent a trespasser from gaining property ownership by taking some easy measures:

• Identify and mark your property boundaries. Inspect your land regularly for signs of trespassers. You may want to use “no trespassing” signs and block entrances with gates. Although many states will not find a “no trespassing” sign sufficient to prevent an adverse possession claim, it’s a good way to deter trespassers.
• Offer to rent the property to the trespasser. With a proper rental agreement in place, the trespasser cannot claim adverse possession.
• Grant written permission to someone to use your land, and make sure you get their written acknowledgment.
• Act fast. In the event of trespassing, you must act before the trespasser has been on your land for the period of time detailed by your jurisdiction, in order to make a successful case.

Adverse Possession vs. Homesteading

Adverse possession is similar to homesteading in practice. In homesteading, government-owned land or property with no clear owner on record 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 an 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.