Someone who is on our land without our permission should not be able to claim it as their own — should they? The answer depends on a number of factors, but often involves the legal theory of adverse possession.
What is adverse possession?
Adverse possession refers to the ability of someone who trespasses on property to claim the land as their own. If they can show that they were there for a period of time and improved the land, the law may be on their side.
How does a trespasser use adverse possession to claim property as their own?
There are generally four factors for this type of issue to find a resolution in court. First, that the individual trespasses on the property, is actually physically present on the property at issue continuously, that their presence is open and publicly known (not a secret), and that they have been the only people on that property for a set period of time. Additional requirements can apply in order for the trespasser to win their claim to ownership through adverse possession, such as paying taxes on the land in issue.
If the trespasser can meet the legal requirements for an adverse possession claim, they could also initiate a quiet title action. This would essentially transfer the title of the property to the trespasser.
How can I protect my property?
Landowners can better ensure their property is protected from adverse possession by keeping an eye on their property. This can include:
- Check tax records. You may have an issue if another individual is paying taxes on your property.
- Post signs to show ownership. Those “no trespassing” signs may not be enough to protect against a claim, but they can deter trespassers from entering in the first place.
- Put it in writing. If you have an agreement for someone to use land for a set period of time without transferring ownership, put it in writing. It can be a good idea to have an attorney review this agreement to better ensure it does not support a future claim for possession.
These are just a few of the things to know about this complicated area of real estate law. Property owners with questions are wise to seek legal counsel to help better understand the issue and potential resolutions.