What Is Adverse Possession of Property? 

 March 4, 2022

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Did you know a legal doctrine that dates back to the civil war can let someone legally take all or part of your property? While it is rare that it happens, it legally can happen.

It is called adverse possession, and while laws vary from state to state, here are some things you should know about it if you’re a property owner.

What Is Adverse Possession?

In simple terms, adverse possession is a legal doctrine that dictates a person occupying land owned by someone else, called an adverse possessor, may acquire valid title to the land providing specific common laws are met. It can be part or all of another person’s property. Depending on the state in which you live, this can happen in as little as five years or take as long as 20 years.

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Adverse possession laws date back to the Homestead Act of 1862 when the U.S. tried to settle the west after the Civil War. Homesteaders were granted 160 acres of surveyed public land. They became the rightful landowners as long as they occupied the land for five years and paid a small fee.

Modern Day Adverse Possession Examples

A common occurrence of adverse possession is when a neighbor accidentally places their new fence a few feet over the rightful owner’s property boundaries. This may be considered adverse possession if the fence remains in place until the statute of limitations runs out and the rightful property owner doesn’t dispute it.

Sometimes adverse possession occurs when someone has been granted an easement, or permission by a property owner for using part of their land for a specific use.  

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So what is an easement, and how can it affect your property rights as a property owner?

When you have an easement, you have the right to use someone else’s property for a specific purpose even though the property owner still legally owns the land.

Suppose you can only access your property by crossing your neighbor’s property using a private driveway. Your neighbor has been permitting you for years. What if the neighbor sells the property? Do the new homeowners have the right to prevent you from using the driveway? What if you buy property for which the previous homeowner granted an easement? 

How Do You Prove Adverse Possession?

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The requirements to prove adverse possession and claim a property vary from state to state, as does the statute of limitations. Many states require the possessor to provide proof they paid taxes on the property and acquired a deed. However, these requirements do not necessarily apply to easements in the same way.

If you have an easement on a piece of property for sale or are buying a property with an existing easement, a lawyer can advise you on your rights. Some types of easements may require a court to determine if the easement is enforceable or not.

If you have an easement agreement, make sure you take the necessary steps to make it legal.

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For more tips regarding your rights as a property owner, visit our Legal section.

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