Adverse Possession: Continuous Trespassers' Rights

Trespassing, the act of entering someone's private property without permission, is illegal. But suppose a trespasser continues trespassing for an extended period of time. The law may give the trespasser the right to stay on (or pass through) the land under certain circumstances. Typically, however, the trespasser must be:

• Living on the land exclusively
• Openly (without trying to be evasive)
• In some cases, they must pay property taxes or improve the property.

The legal doctrine of "adverse possession" outlines this right. These rights range from the right to live on the land to the right to pass across it to get somewhere else. The latter can be an easement, which doesn't necessarily require an adverse possessor. In some cases, these laws are helpful for homeowners who have inherited property passed down through generations but lack actual title documentation.

This article provides a general overview of adverse possession and how it works. See FindLaw's guide to state adverse possession laws for more local information.

Requirements for Adverse Possession

If someone other than the true owner has used a piece of property for years, the doctrine of adverse possession may apply. State laws vary with respect to time requirements; however, typically, the possession by the nonowner needs to be:

• Open and notorious against the property owner
• Under a claim of right

In some states, the nonowner (adverse possessor) must also pay the property taxes on the occupied land. A permissive use, such as by easement, eliminates the ability to claim adverse possession.

Requirements for a Valid Adverse Possession Claim

Under common law, or law historically developed by judges through court cases, a trespasser must meet four elements to qualify for a claim.

1. Hostile Claim: The trespasser must either occupy the land (with or without knowledge that it is private property), be aware of their trespassing, or make an honest mistake (such as relying on an incorrect deed).
2. Actual Possession: The trespasser must be physically present on the land, treating it as their own. Without possession of the property, this requirement cannot be met.
3. Open and Notorious Possession: The act of trespassing and use of the property must be obvious.
4. Exclusive and Continuous Possession: The trespasser must be in possession of the land for an unbroken period and without sharing possession with others. Continuous use of a piece of land, without interruption, would meet this requirement.

Avoiding Adverse Possession: Permission

One common form of trespassing is when a neighbor's driveway or fence encroaches onto someone else's land. Sometimes, the owner will not want to make an issue of the encroachment. This is either because it is a minor problem or because the neighbor is a friend. It's common for neighbors to walk across boundary lines or property lines of another person's property without legal ownership. This isn't because they're trying to assert squatter's rights but because they may have an accessibility issue. They may need to cross property boundaries and cross into a neighbor's property to access a road or waterway.

Here, an actual owner might not mind temporary occupation of the land if a neighbor is crossing it in good faith. To avoid problems later, however, the owner should give the "trespasser" written permission to keep the encroachment for as long as the owner authorizes it. Such a legal right can be conferred through an express easement. If properly handled, this document will prevent the trespasser from acquiring a right to continue the encroachment and from passing legal title to future owners.

Worried About Adverse Possession? Consider Meeting With a Lawyer

Each state has different rules regarding property rights. The elements of adverse possession vary depending on your locality, so it's important to know where you stand. While you may not be familiar with every aspect of real property regulations, you should consider speaking with an experienced real estate attorney in your area to verify or dispute a claim of adverse possession. They can give you legal advice about legal requirements under real estate law. They can also help you file a quiet title action to get your property back if a squatter has possessed it.