Featured News 2013 How to Avoid Adverse Possession

How to Avoid Adverse Possession

Trespassers can be an annoying problem for homeowners. Unfortunately, some forms of trespass can be more permanent than others. Someone could put up a fence, or even a shed or garage, on your property. Then there are even times when a trespasser on your land can become the legal owner of a portion of it. When this happens, this is called "adverse possession". This is something that can even happen on accident. Here is a breakdown of how this could happen on your land.

This usually becomes an issue when a title needs to be contested, necessitating that the matter be brought up in court. A court can determine whether or not there has been adverse possession when they look at whether the encroachment was hostile, actual, evident, and "exclusive and continuous". Of course, state laws might require further conditions in order for trespassing to turn into adverse possession.

  • Taking the first component, "hostile" does not have to be as antagonistic as it sounds. Most states will simply consider someone's presence on your land as hostile, and the person does not even have to be aware that they are trespassing on land that is owned by another person. This is called "simple occupation". Another standard for hostility is that the trespasser had to know they were encroaching on someone else's land, that they knew their presence was illegal. Then some other states say that the trespasser had to be acting in good faith, simply acting in accordance with an erroneous deed, for example.
  • As for "actual possession", the trespasser has to be deemed as an acting owner, actually using the property. This criterion could be fulfilled by showing that the intruder did in fact work on the property for its upkeep and development.
  • Then the possession has to be evident, or "open and notorious". This means that the trespass has to be clear. This could look like an encroaching fence or driveway, something which anyone could see as stepping over your land's boundaries.
  • Finally, the trespasser has to be the sole user of the property, and for long enough too. So the real owner of the land or any strangers cannot also be involved in the use of that part of the property. Also, the intruder cannot walk away from the property, and then resume ownership after a while, and have that whole stretch of time count toward this requirement. How long does this exclusive ownership have to last? That will depend on the state's laws.

But you do not even want trespassing to get to this point. You can avert this sticky situation altogether if you are vigilant. For example, if you think you have uncovered a serious trespasser, then you can look into tax records to see if someone other than you is paying taxes on the property. You can also put up "no trespassing" markers, bar gates, and if necessary, call the authorities.

On the other hand, if someone is going to use your driveway, for example, you might want to issue written permission for this, and then make sure you get a written response from them. This will preclude the option of adverse possession, and even an easement as well. You might even consider asking the trespasser to pay rent if they want to use the land.

Finally, you might need to sue the trespasser or to get a building off your land. In this case, you will certainly need a real estate lawyer, and soon. The longer you wait, the more you may be helping the trespasser to accrue enough time to claim adverse possession of your land. Protect your property. Get qualified legal assistance on your side today!

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