Adverse Possession: When Trespassers Become Property Owners
A trespasser can sometimes gain legal ownership of land just by occupying it. Here's how.
Many landowners are surprised to learn that under certain circumstances, a trespasser can come onto land, occupy it, and gain legal ownership of it. The legal term for this is "adverse possession."Through adverse possession, a trespasser can gain ownership of just a few feet of property or hundreds of acres. And the trespasser doesnt need to intend to take the land by adverse possession. Sometimes it happens through an honest mistake. For example, the trespasser may have relied upon a faulty property description in a deed or perhaps a scammer "sold" the property to the unsuspecting trespasser, even though the scammer never actually owned the property.
Legal Requirements for an Adverse Possession Claim
If questions about ownership of land arise, and the people involved cannot work something out, then the issue may end up in court. When courts look at adverse possession claims, they apply a four-factor test. To qualify as adverse possession, the trespassers occupation of the land must be:- hostile
- actual
- open and notorious, and
- exclusive and continuous for a certain period of time.
Hostile Claim
The word "hostile" doesnt mean that the trespasser rides in on a horse with six-guns blazing. Instead, courts follow one of three legal definitions of "hostile" when it comes to adverse possession.Awareness of trespassing. This rule requires that the trespasser be aware that his or her use of the property amounts to trespassing (meaning the trespasser has no legal right to be on the property).
Simple occupation. Another rule defines "hostile" as the mere occupation of the land. The trespasser doesnt have to know that the land belongs to someone else. This rule is followed by most states today.
Good faith mistake. A few states follow this rule, which requires the trespasser to have made an innocent good faith mistake in occupying the property in the first place, such as by relying on an invalid or incorrect deed.
Actual Possession of the Land
The second prong of the test requires that the trespasser actually possess the property (be physically present) and treat it as if he or she were an owner. This can be established by documenting the trespasser's efforts to maintain and make improvements to the property.Open and Notorious Possession
"Open and notorious" means that it must be obvious to anyone -- including a property owner who makes a reasonable effort to investigate -- that a trespasser is on the land.Exclusive and Continuous Possession
The trespasser must possess the land exclusively (that means the trespasser cannot share possession with strangers or the owner) and without interruption for a certain period of time (that means the trespasser cannot give up use of the property, return to it later, and try to count the time that the property was abandoned as part of the "continuous" possession time period).The time period required varies by state. Some states require the trespasser to have paid taxes on the property for the designated time period. Some states require that the trespasser have some kind of document that would indicate ownership of the property -- such as a deed or title -- even if the document is legally invalid.
How to Prevent Adverse Possession
If you are a landowner, keep an eye on your property. If you suspect that someone has a possible adverse possession claim, check property tax records to see if someone has made tax payments on the property. To prevent a trespasser from gaining property ownership, you can take the following steps:- Post "no trespassing" signs and block entrances with gates. Keep in mind that this is a good way to deter trespassers, but in many states the fact that you have signs or gates wont protect against a claim by a trespasser who takes possession of the land anyway.
- Give written permission to someone to use your land, and get their written acknowledgement. For example, you could give someone permission to park on your land, use a shortcut across your property, or to garden or grow crops.
- Offer to rent the property to the trespasser.
- Call the police.
- Hire a lawyer.
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