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Details on State Adverse Possession Laws

The doctrine of "adverse possession" is one of the most interesting in the field of real property law. Sometimes referred to as "squatters' rights," adverse possession laws are often cited to settle boundary disputes with neighbors or to provide legal title for homeowners lacking documentary proof of ownership. These laws are directly based on the statute of limitations for trespassing claims.

Details vary from state to state, but adverse possession laws generally state the following: If a person moves into possession of property, improves it and possesses it in a public manner, then after a certain amount of time he will acquire title to the property even though it is actually owned by someone else.

The basic requirements for a valid adverse possession claim (which, again, will vary by state) include:

  1. A hostile claim: This means the occupier must be on the land either by mistake (an incorrect deed), with knowledge that they are trespassing, or simply on the land without knowledge of its actual ownership
  2. Possession: The person occupying the property must actually, physically be present on the land and taking care of it
  3. Open and Notorious: In other words, the occupier is making no attempt to hide their occupation
  4. Exclusive and Continuous: The person making the claim has solely occupied the property for an unbroken period of time

You should learn more about your state's adverse possession law if your home has been passed down through generations without a title; your fence (or that of your neighbor) is across the official property line; or otherwise have a conflict between official ownership and actual use. See FindLaw's Land Use Laws section for additional articles and resources, including Adverse Possession: Continuous Trespassers' Rights and Express and Implied Easements.

Adverse Possession Law: An Example

One of the most common ways adverse possession laws are invoked is to bring official titles in line with the actual use of a given property.

For instance, your neighbor purchases the property next to you and builds a fence based on an incorrect property description. The fence -- both "open" and "notorious" -- is just one foot into your property line, but you don't realize this until 10 years later (assuming the statute of limitations for trespassing is 10 years). At this point, your neighbor becomes the rightful owner of that extra one-foot strip of land.

A Brief History of Adverse Possession Laws

The idea behind adverse possession is that land should not lie idle. If it does, it is wasted to the community. Therefore, if someone moves onto the land and makes it productive, that person may earn the right to claim it as his or her own. It is also reflective of the imprecise nature of ancient land sales: a person who believes he owns land, establishes himself on it in public, and is not hindered after a period of time, should be entitled to own the land.

Adverse possession laws have their roots in Roman law, which allowed someone in possession of a good for a certain period of time (usually one or two years) to claim ownership if the rightful owner did not claim it first. This did not include goods acquired through theft. This concept spread throughout Europe through the centuries, eventually taking root in English common law.

The concept of adverse possession and homesteading laws were used during the U.S. westward expansion of the 1800s. However, these laws also were misused as a justification for taking land away from Native Americans and Mexicans.

Need Help with an Adverse Possession Claim? Call a Real Estate Attorney

Filing a claim under most states' adverse possession laws is a complicated process that often benefits from the help of a trained legal professional. Make sure you speak with a real estate and land use attorney in your state if you have questions about adverse possession.

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