Adverse Possession – When Trespassers Become Property Owners
Season 3, Episode 6 – Imagine a complete stranger suddenly owning title to your property—while you’re still living on it! It’s known as Adverse Possession. And it can happen. In certain circumstances a trespasser can enter your property, occupy it, and then gain legal claim to it. So what exactly is Adverse Possession? How does it end up in court? And what is the test for a trespasser to qualify for ownership? Before you start building walls around your home, JDSA Attorney Matthew Hitchcock informs us about something most of us didn’t know was a thing, in this podcast titled Adverse Possession – When Trespassers Become Property Owners.
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Host: Let's talk trespassing. Now the act of entering someone's private property without permission is illegal, we all know that. However, you may be surprised to learn that under certain circumstances, a trespasser can come onto your property, occupy it, and gain legal ownership of it. The legal term for this, Adverse Possession.
How? How does this work? What rights do you have as a property owner? Or a trespasser? In this episode of JDSA's Law Talk, attorney Matthew Hitchcock is here to discuss Adverse Possession, when trespassers become property owners.
Matt, always a pleasure to talk to you.
Matt: Glad to be here, Clint.
Host: This sounds wild. Someone trespassing onto your property and actually taking possession of it. This happens sometimes?
Matt: It happens more frequently than you would imagine.
Matt: It's a common situation, especially out West where the boundaries were drawn long ago in rural situations with miles and miles of distance between town. There's a lot of variance in property boundary locations.
Host: Might not be fun if you're the person affected, but I have a feeling this is going to be a fun topic to delve into. That's exactly what we are going to do.
Trespassing, Adverse Possession, next. Right here, on JDSA's Law Talk.
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Host: If you'd like to read more in-depth articles on important legal topics, read through our news, articles, and blogs at jdsalaw.com. I'm your host, Clint Strand, talking with our featured attorney, Matt Hitchcock about Adverse Possession, when trespassers become property owners. Matt, let's get into this, the basics.
When we talk about Adverse Possession, the legal term, what are we talking about in real world conditions?
Matt: Adverse Possession is the process by which a party who uses land and is in possession of land over a period of time, can shift legal title to themselves. Even though, they're not the true owner.
Host: So that old cliché, possession is nine tenths of the law, there's actually some truth to it?
Matt: That's right, yeah. If you act like the owner for a long period of time, you are the owner.
Host: That's amazing. How do Adverse Possession Claims end up in court?
Matt: Well, an Adverse Possession claim can end up in court in a variety of situations. Often times, the sale of a house, or the sale of a commercial property may trigger survey. Which then the parties realize, we have an issue with the location of the boundary. There's a disagreement about who owns what.
Host: So, Adverse Possession, just talking about this feels a little nefarious, but there are honest, good faith ways in which this can come about.
Matt: Yeah and a lot of times, it actually does come about through no ill will between neighbors, between property owners. Often times, it's based on an erroneous survey. It's based on a location of a fence that wasn't properly installed along a boundary line.
Host: Properly located, in the sense that everyone was acting on information they thought was accurate at the time, but it turns out, it wasn't.
Matt: Right. Before you know it, your neighbor now owns the back half your yard because they've acted as the owner of that portion of your yard for a long period of time.
Host: Regardless of the circumstances, if you're that homeowner and you figure that out, that someone owns the back half of your yard, you'd be steamed. So, what are the legal requirements for a valid Adverse Possession claim? If someone says, I want that yard back. What are the parameters for knowing that they could actually ask for it back?
Matt: An Adverse Possession claim has, really, four key factors. Very briefly, those four factors are, it must be hostile. The use must be hostile, meaning that the trespasser must occupy the land and be aware of the trespassing. Or it could be an honest mistake, but it directly infringes upon the true owner's property rights.
Host: Regardless of whether the mistake was nefarious or honest, it's impinging upon the person's property rights, so there you go. So what else? What are the other legal requirements?
Matt: The second legal requirement, is actual possession. That means that the trespasser, the non-owner of the parcel, must physically possess the land in some notable way.
Host: You're tending that garden, you placed your garage on that land, you're mowing your lawn on that land. That's what we're talking about here.
Matt: That's right and the best way to describe this is the fence analogy. If you build a fence 20 feet into someone else's land, the portion within the fence line is in your actual possession, irrespective of whether you're the true owner or not.
Host: Regardless of what the deed says, that's what the reality is, is what you're saying?
Matt: That's right. The courts try to look more to the reality, the way the land is used on the ground. As opposed to, just the legally recorded documents.
Host: What are other legal requirements we are talking about here?
Matt: Third, an Adverse Possession claim has to be open and notorious. So, it can't be secretive possession. It can't be ... For instance, we were just talking about fences. If you don't have a backyard fence, but you install one of those underground dog collar fences, that wouldn't be open and notorious. So, chances are, that wouldn't withstand a claim for Adverse Possession.
Finally, the fourth element is, exclusive and continuous possession. That, in short, means the trespasser must be in possession for an unbroken period of time and not sharing possession, IE; acting like a true owner of property would act.
Host: When you say an unbroken period of time, is there a mile post? Is there a time card? Is there a certain amount of time that's legally required? Or can someone put up their fence and next week say, this is mine?
Matt: Different states have different rules. In Washington, our statutory period is ten years for an Adverse Possession Claim.
Host: Ten years, okay. So, let's take a deep dive now. We talked about it in generalities. Let's talk about a deep dive on a hostile claim. Now a hostile claim, I'm thinking hostile ... We're not talking about the OK Corral, here. No one is twirling their mustache with evil intent, right? I mean, that's not what we think when we say hostile.
Matt: That's right. Although, hostile brings to mind the mustache, evil, old West villain.
Matt: In the sense of Adverse Possession, hostile means acting as the true owner. It means simple occupation. In your interests and against the true owners interest, it could be an awareness of trespassing. A trespasser may know that they're trespassing, and I suppose this would be the evil intent.
If I know that my neighbor's property line is at point X, but I build my fence 20 feet past point X. And, I hope that over the next 10 years, they don't pick up on it, that would be a hostile way to make an Adverse Possession claim.
Then, as we had mentioned, good faith mistakes can also constitute hostile possession. It depends upon the acts. How a true owner would act and how the trespasser did act.
Host: As in, "What do you mean this is your property? This is what the deed says." But then that's not really what is in reality. That's what we're talking about, right?
Matt: That's correct.
Host: Okay. Let's talk about another deep dive about actual possession of the land. We're not talking about what the deed says or paper says, we're talking about what's real, on the ground, literally. So when we say, actual possession of the land, what are we talking about?
Matt: Well, actual possession of the land requires the trespasser to actually possess the property, be physically present. Now, they don't have to be physically present all of the time for all 10 years. But they do need to be physically present and treat the property as if they were the true owner.
One way that someone could document their actual possession of the land would be by historical photographs of improvements. Or it could be the family legacy and the family history on a piece of property. That they always used a particular corner of the land for a specific reason and that land was outside of what they actually owned.
Host: So, we're talking about the four main legal requirements for a valid Adverse Possession Claim. We've gone over a hostile claim, we've gone over an actual possession and what that is.
Coming up, we'll do a deep dive onto what we call open and notorious possession. Also, exclusive and continuous possession. What those mean and they're not necessarily the same thing. We'll break it down for you next, right here on JDSA's Law Talk.
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This is JDSA's Law Talk. I'm your host Clint Strand talking with our featured attorney, Matthew Hitchcock about property easements and what you should know about them.
We've done a deep dive on the last couple of requirements of, I guess what we call Adverse Possession, Hostile Claim, and Actual Possession. Let's talk about one of my favorite terms, Open and Notorious Possession.
I guess we should also say before we start, Notorious in a legal sense doesn't mean what maybe comes to mind when we hear that term, right?
Matt: Right. Notorious really means obvious. Open and obvious would be the way we would say it in modern parlance. It just means that it's obviously to anyone. The person who owns the property. It's obvious to a passerby. It's obvious to people who pay attention.
Host: Obvious, not infamous.
Matt: That's right. Unfortunately, the term notorious has changed somewhat in meaning since its original use.
Host: Just a smidge, but that's okay. So, let's do the deep dive on it. When we say Open and Notorious Possession, you touched on it quickly, but anything else that we need to really talk about this to make sure that people know exactly what we're talking about here?
Matt: Like with many things in the law, obvious doesn't always mean just plain old obvious. It could be that the existence of an underground sewer line is obvious because there is a connection that's above ground just down the road.
Matt: It's obvious that that sewer line would run that direction. It could also be obvious as in just plain old obvious where your neighbor puts up a fence, if that were part of an Adverse Possession Claim. If the fence wasn't located on the property boundary, that would be obvious.
Host: Obvious with nuance. There you go being an attorney again, right. Nothing is ever completely black and white, but that's why we're here talking about this.
Let's take another deep dive into the fourth and final part of all this. Exclusive and Continuous, which is different from Open and Notorious. You were talking about obvious earlier, so what does Exclusive and Continuous mean?
Matt: Well, somewhat like Open and Notorious, it doesn't mean exactly what it says. Exclusive and Continuous might lead someone to believe that no one is ever allowed on that portion of the property, other than the person who's trespassing and acting as the Adverse Possessor.
What it actually means, is that it's used in the way that a true owner would use it without interruption. So, if it's a vacation property on the lake that people only go to in the summer time, the Exclusive and Continuous Possession would be qualified if they used it in the Summer time.
Even if they left it alone and vacant during the Winter, if they use that portion of property when it would be typical of a true owner, that could satisfy the Exclusive and Continuous Possession use.
The other aspect of it, the exclusive side of it, is that it doesn't necessarily have to be only the Adverse Possessor who's using that property. It just means that the Adverse Possessor is preventing people, other than him or her and his or her invites from using the property in a way that a true owner would.
So, for example, the exclusive use of a parcel of property, could be consistent with allowing individuals to walk across it. It could be consistent with allowing people to drive across it. It just depends on the nature of the property and the way a true owner would use that property.
Host: Okay. So we've talked about the four main points. As people are listening to this, it might be a reasonable question to ask, how do I keep this from happening to me? How do I prevent this from happening to me? What can you do to prevent Adverse Possession? So, Matt, what can you do?
Matt: The very simple first step is pay attention. If a property owner is paying attention to what is on, under, and around their property, that's going to go a long way toward preventing an Adverse Possession Claim.
Second would be, maybe post No Trespassing signs. If you've got a larger property and you're not going to be able to see everything that goes on, a No Trespassing sign can serve to preserve your interest in that property.
If you discover an Adverse Possessor, instead of fighting a battle and fighting it out, you can prevent the Adverse Possession by entering into a written agreement for their particular use of that property. That may work in some situations, it may not work in others.
The other option could be to offer the trespasser, or the Adverse Possessor, offer them use of the property for rent. You'll give them the portion that they think is theirs, so long as they recognize it's yours and pay you some rent.
In certain situations, it might be appropriate to call the police, if someone is frequently trespassing on your property and refusing to leave. You could also initiate a law suit to eject them from your property. In that, you could obtain a court order establishing that you're the owner of that disputed portion of property, and removing the trespasser, and any of their buildings from your property.
Host: Lots of options for folks that find they're getting their rights impinged upon.
Matt: Right. I think one more is quite important. That would be, if you have a question about where your boundary is located, and you think you may have an Adverse Possession situation, get a survey done. Have a professional surveyor come out and determine the location of your boundary so that you know whether that is the case or not.
Host: Really smart stuff from Matt Hitchcock. We're going to bring it all together when it comes to Adverse Possession. What it is and how to prevent it. That's coming your way, next. Right here, on JDSA's Law Talk.
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Host: Welcome back to JDSA's Law Talk. If you have a question about today's topic or a topic suggestion for a future episode, email us at firstname.lastname@example.org.
We're wrapping things up when it comes to Adverse Possession, when trespassers become property owners. Talking with our featured attorney, Matt Hitchcock. We've talked about a lot of details, let's bring them all together here, when we talk about Adverse Possession, what would you like our listeners to know the most?
Matt: Well, certain states have different rules. There are a fairly wide variety of interpretations of these basics we've covered today. For instance, some states would require the individual who's claiming Adverse Possession to have paid property taxes for the statutory period, 10 years or 20 years. In some states, it may be five.
The second point is that, if you discover an Adverse Possessor or you think you have an Adverse Possession issue, don't wait. Approach the neighboring property owner, if it's safe and not going to lead to a violent confrontation. Get an easement or an agreement, assert your ownership of that portion of the land as soon as you find out that the Adverse Possession situation is arising.
Then last, probably most importantly, an experienced Real Estate Attorney is going to be able to help you understand your rights in the situation you're in, because they're going to be different than your neighbors.
Host: Certainly, these can be emotional situations. The best way to diffuse that are with facts and legal precedent, I'm sure.
Matt: That's the system that we operate under in our society, it encourages that for a reason. It's because no lives are going to be lost in the court room. Hopefully, you're both ... You and the Adverse Possessor are going to come away with a concrete resolution that is an answer.
Host: It's the way the system is supposed to work and you're there to facilitate it. Matt, thanks so much.
Matt: My pleasure.
Host: Thanks for joining us for this episode of JDSA's Law Talk. Now remember, if you have a legal matter and require solid legal advice, connect with a member of the JDSA Law Team at jdsalaw.com. You can also hear Law Talk episodes on other topics and submit your questions or suggestions for a future show.
I'm your host, Clint Strand. Thanks again for joining us on JDSA's Law Talk.
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