Adverse Possession

The Rights of Property Owners, Adverse Possessors, and Continuous Trespassers
A cornerstone of the American concept of ownership of real property is that the owner of a property has exclusive right to use that property as he or she desires, at least so far as use does not result in harm to another or run afoul of statutory law or administrative regulations. It is therefore a shock for many property owners to learn that there are provisions of law in every state that allow someone else to effectively take control of at least a part of their property for their own use. This is known variously as “squatter’s rights” or, more formally, as “adverse possession.”

Adverse possession is the legal doctrine that was developed during the American colonial and post-revolutionary periods regarding ownership of land in an era when there was much more land available to be developed than there were people available to do that developing. If there was no clear ownership of a parcel of land, the person who converted land from its “wild” state to something “productive” was considered to be its rightful owner after a set period of time.

In our current era, the right to land by adverse possession is governed by the statutory (“on the books”) law of the state in which the land is located. Since anyone making a future claim by right of adverse possession must have been a trespasser at one time, there must be some set of principles that separate a potential adverse possessor from a from a “habitual” or “continuous” trespasser. These principles are:

• Principle of Hostile Claim

The trespasser must occupy the land in question by either 1) a willful, deliberate act of trespass; 2) making an “honest mistake” in believing that he or she is not trespassing, or 3) by simple occupation without knowledge of its ownership.

• Principle of Actual Possession

The trespasser must be physically present on the land and treat that land as if he or she had an actual title to that land, such as clearing the land or building a structure. Occasional recreational use of land is not considered actual possession.

• Principle of Continuing Possession

The trespasser must have had a continuous, unbroken presence on the land for a certain number of years and not have shared possession with anyone other than a spouse.

• Principle of Notorious Possession

The trespasser has made no attempt to hide the fact that he or she was present on the land that could not have been detected by a casual inspection by the property’s rightful owner.

The above-mentioned principles are, of course, generalizations that may vary considerably between states. We can now turn to the some of rights and responsibilities of rightful owners and continuous trespassers.

1) Neither the owner nor the potential adverse possessor of a property may “set a trap” or some other device that is intended to cause bodily injury to another person or unreasonable damage to another’s personal property.

2) Neither party may resort to an illegal act (e.g. arson or reckless gunfire) to force the other party from the property.

3) An owner cannot use unreasonable or illegal force to remove the trespasser but must instead rely on law enforcement agencies to physically eject a trespasser but, once the trespasser is removed, the owner may take any reasonable steps to prevent the trespasser’s physical return.

4)Once a party has petitioned for and been granted ownership of a property by means of adverse possession, access to the new owner’s land cannot be restricted in any way by the former owner except through legally permissible means such as refusing to grant an easement.

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As always, these generalizations cannot take the place of legal counsel. Those with questions regarding the above are encouraged to seek the advice of an attorney with experience in land possession and land title law.