What is Adverse Possession
Adverse possession is a way of obtaining ownership of another person’s property by taking possession for a statutorily specified period of time. In addition, several other elements must also be met before you can “adversely possess” someone else’s property. The specific elements required vary by state, but the basic elements are essentially the same. The following is an overview of the basic elements.
Elements of Adverse Possession
- Lasting Possession: The possession must last for the statutory period. Most states require 5-25 years of possession before you can claim adverse possession.
- Actual Possession: You must be in actual possession of the property. You can’t claim someone else’s property from afar, you must personally take possession. Some states have exceptions to this requirement. For example, some states consider leasing the land to someone else “actual” possession even though you are not living there yourself.
- Hostile Possession: You must be on the property without the right to be there. This basically means you must be trespassing on someone’s property. Some states have an exception to this requirement when the squatter has color of title (bad title) to the land. The exception is called "constructive adverse possession" and occurs when the squatter has title to the property but the title is defective for some reason (ex. the property description is incorrect). In this case, the person may claim adverse possession even though they mistakenly thought they had the right to be there.
- Exclusive Possession: You must be excluding others from possessing the property. This makes sense since a true owner would protect the property from others. This shows that you are acting like a rightful owner.
- Uninterrupted Possession: You must use the property continuously just like a true owner. For example, you can’t leave for three years then come back expecting to pick up where you left off.
- Visible Possession: Your use of the property must be out in the open. This means you can’t hide on the property and expect to gain ownership. You must be openly using the property just like an ordinary owner would.
It is important to note that many states require more than the elements described above. For example, some states require payment of taxes before adverse possession applies. For more information about adverse possession in your state you must look to state law. This can be done by visiting your state legislature's website or websites such findlaw.com.
As you can see, there are many elements to adverse possession. It is not as easy to do as recent news stories suggest. The main reason for this is that most property owners do not neglect their property for such long periods of time. As such, I don't recommend trespassing on anyone's property in the hopes of using adverse possession.
The information in this article is for general information purposes only. Nothing on this or associated pages, comments, answers, or other communications should be taken as legal advice. The information provided is not intended to create, and viewing of this information does not constitute, an attorney-client relationship.
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- Texas Adverse Possession
Texas real estate attorney explains the legal requirements for adverse possession in Texas.
- California Adverse Possession
Overview of California adverse possession law.
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