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What Is Adverse Possession of a Real Estate Property?


Adverse possession is a legal concept that occurs when a trespasser, someone with no legal title, can gain legal ownership over a piece of property if the actual owner does not challenge it within a certain period. To avoid such scenarios, it is of utmost importance that property owners familiarize themselves with the conditions and prerequisites of adverse possession as they vary widely. You may want to speak to a financial advisor or lawyer to see how your personal finances might be impacted. 

Requirements of Adverse Possession

Imagine you’re a property owner, and after many years, you discover that a neighbor has used a minor part of your empty land as an extension of their backyard. You realize this seems to be a case of adverse possession, but you’re unsure of what that means for you and your land rights. Navigating through the maze of real estate law becomes vital. 

By definition, adverse possession is a concept that asserts that if someone has possessed the land of another for an extended period of time, they may claim legal title to that land. This principle is known to lead to many disputes and misunderstandings. The notion of a trespasser staking a claim for adverse possession hinges on fulfilling five essential criteria. These requirements are:  

  1. Occupation is hostile: Possessing the property must be done without the permission of the owner. 
  2. Occupation is open & notorious: The person possessing the property can’t be hiding the fact that they are doing so. 
  3. Occupation is exclusive: If multiple people are possessing the land then this isn’t exclusive possession. 
  4. Occupation is continued for the required time period: The statutory time period can vary by state and typically falls between 3 – 20 years. 
  5. Continuous and uninterrupted possession: The possession must be continued during the full statutory period without any interruptions, such as being run off and then re-possessing the property after a period of time. 

To illustrate this, let’s imagine John found an abandoned house and decided to live there without legal permission. After many years, if the real owner doesn’t object or realizes it too late, John might gain legal ownership rights. This legal principle’s genesis lies in the desire to ensure unused lands are productive, potentially helping to resolve ownership disputes. Let’s say John starts gardening, restoring the house and lives there without concealment, continuously, without disruption from the actual owner. By doing so, John meets the criteria for claiming adverse possession.

How to Prevent Adverse Possession

Thankfully, property owners can apply numerous preventive measures against adverse possession. Regular property inspections can alert the true owner to any unauthorized use and are always beneficial to ensure your property is unoccupied. 

Leasing the property can also effectively thwart any claims of adverse possession since it delineates a legal agreement between the owner and occupant. Discovering a trespasser can lead to legal actions such as a lawsuit for ejectment to reclaim the property. Regardless, if there is a potential claim that someone becomes aware of then it’s imperative to talk to an attorney as soon as possible. 

Adverse Possession vs. Homesteading

Adverse possession laws by state

Adverse possession can give land title to a ‘squatter,’ while homesteading does the same but under the umbrella of laws encouraging the productive use of unoccupied land. If the land is already slotted for something, and it’s been made known, then homesteading occurs when someone decides to try and occupy that land for a different purpose. 

For instance, consider the story of John claiming an unused house vs. Jane, who moved onto an unoccupied plot charted for development. Jane’s actions are deemed homesteading, while John’s are seen as adverse possession.

Adverse Possession Changes From State to State

It’s important to understand that these laws can vary quite dramatically from state to state. Each state has different adverse possession laws. Some states, like California, dictate a period of five years for an adverse possession claim, while in Texas, it’s ten years. If you’re in New York, the law necessitates a continuous, uninterrupted use of ten years and other specific requirements. 

With such varying laws, readers must familiarize themselves with their state’s specific rules or seek assistance from a financial advisor or attorney to demystify the complexities. 

Bottom Line

How to protect your house from adverse possession

To prevent the loss of your property unknowingly, understanding adverse possession becomes imperative. Laws shift from state to state, hence, learning about the local ordinance is non-negotiable. Consulting with a financial advisor or attorney is a wise move to manage the intricacies of this issue, especially if you identify a potential issue. 

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