Trespassers may occasionally establish legal title of property just by inhabiting it. Here’s how it happens and what you can do to avoid it.
Homeowners have the legal right to keep intruders off their property. People may address this by erecting fences, posting signs, or simply asking trespassers to leave. A landowner may contact the police in circumstances of significant, recurrent irritation or threatening danger, and the police will normally warn the offender to keep away and, if required, make an arrest.
However, another kind of trespass is more serious. It entails utilizing another person’s property in the same way as the owner would. If, for example, someone drives through your land every day, it is trespass unless you have given permission or the motorist has a legal right to use that area of your property, known as an easement. A neighbor who builds a fence two feet over the property line, or one who maintains a garage on your land for numerous years, is likewise trespassing.
Furthermore, under a legal notion called as adverse possession, the latter kind of trespass might potentially lead to someone claiming ownership.
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Adverse Possession is defined as
A trespasser may obtain ownership of a few feet of land or hundreds of acres via adverse occupation. It will not happen overnight. However, depending on your state’s rules, a trespasser may come onto your property, inhabit it, and ultimately establish legal possession.
The trespasser does not have to intent to seize the land via hostile possession. Sometimes it occurs due to an honest mistake—for example, a neighbor may have built a fence on your land based on an incorrect property description in a deed.
How Adverse Possession Claims Are Resolved in Court
Property ownership issues may occur in a variety of scenarios, such as the selling of a home. A title insurance firm, for example, may refuse to give protection when a property is sold because the neighbor’s garage is discovered to be standing directly on the property.
If problems concerning land ownership develop in this sort of circumstance and the parties concerned are unable to reach an agreement, the matter may wind up in court. The property owner may sue the trespasser (for example, a neighbor whose garage is encroaching), or the trespasser can file a lawsuit to “quiet title,” which is a request to the court to determine who owns what.
Legal Requirements for a Land Adverse Possession Claim
When deciding on adverse possession claims, courts use a four-factor test. To be considered adverse possession, the trespasser’s occupancy of the property must be as follows:
aggressive real open and infamous, exclusive and ongoing for a certain time period (typically measured in years).
This article goes through each of these components. Details on the restrictions that apply to your (or the other person’s) property may be found in your state’s adverse possession statute. In addition to the legal criteria stated below, several states require the trespasser to have paid the local property taxes on the land within a certain time frame.
A hostile claim is required for adverse possession.
The term “hostile” does not imply that the intruder rides in on a horse, six-shooters drawn. When it comes to adverse possession, courts instead use one of three legal meanings of “hostile.”
Simple profession. This criterion (still adopted by the majority of governments today) defines “hostile” as the simple occupancy of territory. The trespasser is not need to be aware that the land belongs to someone else.
Trespassing awareness This criterion requires the trespasser to be aware that his or her use of the property constitutes trespass (meaning the trespasser has no legal right to be on the property).
Good faith error. A few states apply this criterion, which requires the trespasser to have occupied the property in good faith and committed an innocent error, such as relying on an invalid or erroneous deed.
See also How “Hostile” Property Use Must Be for Adverse Possession Claim.
Adverse Possession requires physical possession of the land.
The second part of the court-applied standard requires the trespasser to genuinely own the property (be physically present there) and treat it as an owner would. Documenting the trespasser’s attempts to maintain and enhance the land, such as planting and watering a garden or erecting a shed, might help demonstrate this.
Open and Notorious Possession is required for Adverse Possession.
“Open and infamous” implies that anyone—including a property owner who takes a reasonable attempt to investigate—must be able to see that a trespasser is on the property. A neighbor who builds a fence on the next-door property or pours a concrete driveway two feet over the boundary line are two examples.
Negative Possession Exclusive and continuous possession is required.
The trespasser must have exclusive control of the land (that is, the trespasser cannot share possession with outsiders or the owner) for a certain amount of time. (This implies that the trespasser cannot depart the property, return to it later, and claim that the time spent abandoning the property is part of the “continuous” possession time period.) The needed time duration varies by state. It usually ranges between seven and twenty years.
How to Avoid Negative Possession
Keep an eye on your property if you own it. Check property tax records to discover whether this individual (or anybody else) has made tax payments on the property if you feel they have an adverse possession claim. You may take the following procedures to prevent a trespasser from acquiring property ownership:
Post “no trespassing” signs and use gates to restrict entry. Keep in mind that although this is a smart approach to prevent trespassers, in many jurisdictions having signs or gates will not protect you against a claim by a trespasser who takes control of the property regardless.
Give someone formal permission to use your land and get written recognition from them. You might, for example, provide someone permission to park on your property, take a shortcut through your property, or cultivate or produce crops. This may defeat not just an adverse possession claim, but also an easement (use permission) claim across your land.
As explained in Sample Rental Agreement for Neighbor’s Use of Portion of Your Land, offer to rent the property to the trespasser, so formalizing the connection.
Call the cops.
Hire an attorney. To evict the trespasser from the landlord’s property, you may need to file a lawsuit. Alternatively, you may seek a court to order the removal of a construction from your land. You must act before the trespasser has been on your property long enough to file a successful adverse possession claim under your state’s law.