How “hostile” Property Use Must Be for Adverse Possession Claim

An adverse possession claim does not need being harsh and disrespectful to the genuine property owner!

The trespasser’s possession must be “hostile” in order to establish a claim to another person’s property via adverse possession. (Other conditions include continuous, real, exclusive, open and infamous ownership.) But how “hostile” must the trespasser’s conduct be? Is it necessary for the trespasser to be angry or disagreeable towards the genuine property owner?

No, it does not. The term “hostility” does not imply malice or ill intent. In the context of adverse possession, “hostility” indicates that the person claiming ownership of a disputed piece of land must show to a court that his or her presence is a real invasion of, or infringement on, the genuine owner’s property rights.

Mistaken Property Possession Can Be Dangerous

Assume you erect a fence, assuming that you are doing it at the edge of your yard. Three decades have passed. Your neighbor then learns that your fence was erected two feet onto his land, implying that you’ve been living with a somewhat broader yard than you have legal title to for the last 30 years.

Even if you didn’t aware you were putting the fence on your neighbor’s property at the time, your ownership of that portion of land may still be deemed “hostile” under your state’s legislation, since your usage directly impacted on his property rights. In fact, even if the ownership happened accidently or by mistake, the element of animosity may be established.

However, state laws differ on this subject. In certain cases, the trespasser must be aware that he or she has no legal right to be on the property. On the opposite end of the spectrum, a few jurisdictions’ laws require the trespasser to have occupied the property in good faith, such as by relying on an illegal or incorrect land title.

If the property owner agrees to the trespasser’s use, there will be no hostility.

When the trespasser has the authorization to be on the property, a claim of ownership via adverse possession will fail. No matter how long a trespasser uses property with authorization from the owner, he or she can never obtain title through adverse occupation.

In other words, if your buddy tells you that you may swim in his backyard pond anytime you want, and you do so for decades while he never uses it, you can’t bring an adverse possession claim against him. There is no antagonism since you were given explicit permission.

In this spirit, many courts dismiss adverse possession claims by family members since it is assumed that family members would provide permission to occupy portions of their property. As a result, if you reside in your uncle’s garage for the appropriate statutory term, or erect a shed in your mother’s yard, the courts will infer that your presence was not hostile.

Renters have no adverse possession.

Similarly, a renter cannot bring an adverse possession claim against the owner or landlord of a piece of property. This is true regardless of how much rent was paid or how long the tenant had possession of the land.

How the “Hostile” Requirement Aids Property Owners in Fending Off Adverse Possession Claims

If you are a property owner and witness a trespasser or neighbor utilizing your land, the requirement that the trespasser’s usage be “hostile” provides you with two alternatives for protecting your property rights. First, you may talk with the individual and offer them your consent. Alternatively, if you want not to provide authorization, just explain your property rights. The trespasser will almost certainly depart without more ado.

Second, you may have the trespasser sign a lease. A documented rental agreement would provide indisputable proof that the trespasser was utilizing a section of your property with authorization for even a little fee. Once such authorization is granted, the trespasser is no longer a trespasser. As a result, he or she would be unable to fulfill the burden of demonstrating hostile possession and hence would be unable to claim ownership via adverse possession.

Again, you have no legal need to offer such authorization. This is most acceptable when you don’t mind the person’s usage and wish to preserve good ties, such as with a neighbor who has planted flowers along your property border. In dealing with adverse possession, a more direct approach is to contact an attorney and file an action to evict the trespasser, in addition to notifying the police.