Real Estate Law

What Is Adverse Possession & “Squatter’s Rights” ?

Imagine yourself in the following situation. You purchased your home more than 20 years ago. When you bought the house, there was a wooden fence marking the property line between you and your neighbor. Naturally, you assumed that you owned everything inside of your side of the fence. Over the years, you mowed the lawn, planted trees, and decorated the entire area contained within the fence.

But after more than 20 years, your neighbor shows up at your door one day with a property surveyor. The surveyor claims the fence was placed in the wrong location by the former owners of your house. The actual property line is six feet to the west of the fence. Based on this, your neighbors claim they are the rightful owners of roughly 1,500 square feet that you have always considered part of your property.

Eventually, you and your neighbor end up in court to decide who owns the disputed property. The judge decides that since the fence has been up for more than 20 years and you actively treated the disputed property as your own, then you are now the rightful owner. Your neighbor has no leg to stand on, as it were.

This is not a hypothetical scenario. These facts are taken from an actual lawsuit involving the legal principle of adverse possession. Also referred to sometimes as “squatter's rights,” adverse possession is a legal method by which someone can assume title to real property through actual use, despite what the deed might say.

Adverse possession laws vary from state-to-state, but the basic conditions to make such a claim are essentially the same. They are as follows:

1. You Must Have Actual Possession of the Disputed Property. The party claiming adverse possession must have physical control of the property. For instance, in the example above, the claimant established actual possession through the wooden fence and by performing regular maintenance on the disputed property. In short, you need to act as if you are the real owner of the land.

2. Your Possession is Open and Notorious. Adverse possession cases often use the phrase “open and notorious” to describe the claimant's actions. This doesn't mean the claimant is doing something sinister or underhand. Rather, “open and notorious” means that the claimant's assertion of possession must be clear and unmistakable, such that the original owner is “presumed to have notice” of the squatter's claim. Once again, putting up a fence would typically qualify as an act of open and notorious possession. Other examples might include putting up a “No Trespassing” sign or constructing a building on the disputed property.

3. Your Possession Must Be Exclusive. If you are claiming property via adverse possession, then you must claim it exclusively for your own use. That is to say, you must treat the disputed property as belonging to you, not to both you and the original owner. Once again, the issue is whether or not you are “acting” as if you owned the property, despite what the legal title might say.

4. Your Possession Must Be Hostile. Much like “notorious,” the use of the word “hostile” may be misunderstood by some people. In the context of adverse possession, a claimant's actions are “hostile” in the sense they are taken without permission of the original owner. In other words, if your neighbor knew that wooden fence was in the wrong location but said it was okay for you to use part of his property, then your possession is considered permissive rather than hostile.

5. Your Possession Must Be Continuous and Uninterrupted for a Certain Number of Years. Everything described above must continue for period of time specified by state law before you can establish ownership through adverse possession. The actual time period varies widely. The case described above took place in Maryland, where the adverse possession must be continuous and uninterrupted for at least 20 years. In some states, the minimum time period is just 5 years, while in others it can be as high as 30 years. This is one reason, among many, why it is important to consult with a qualified real estate attorney before pursuing an adverse possession action.

Resolving Adverse Possession Claims in Court

Adverse possession claims often “spring up” on unsuspecting property owners. For instance, when a house is sold the title search may uncover a previously defective survey. Indeed, two neighbors may live next door to one another for decades without realizing their understanding of their property line is incorrect.

If the parties are unable or unwilling to work out the disputed property boundary themselves, then legal action may become necessary. The original owner can sue the “squatter” for trespassing. Conversely, the claimant can file a lawsuit to “quiet title,” or establish they have in fact assumed ownership through adverse possession. Either way, a judge will ultimately decide who owns the disputed land.

It is important to note that each state may require a party to satisfy a number of additional conditions before an adverse possession claim can succeed. For example, the squatter may not to furnish proof they have paid all property taxes on the disputed land during the required period of continuous and uninterrupted occupation.

In some states, a claimant may also need to demonstrate they acted in “good faith.” This means that if you are claiming property by adverse possession, you must show you had some legitimate basis to reasonably believe you were the actual owners all along. For instance, if there was a faulty deed or tax record showing you were the owner, that could prove you had a good-faith belief. But if you knew all along that your neighbor had a rightful title to the disputed land, then you would not be acting in good faith.

As with all aspects of adverse possession, however, the requirements to show good faith will vary from state to state. This is why you should contact a local real estate attorney with knowledge of your state's particular laws before making any assumptions about your rights.