Did you know that someone can claim ownership of a property (in part or whole) without having purchased it? This is known as “adverse possession,” and is a holdover from the frontier days when staking your claim on a piece of land made it yours.
How does adverse possession work?
Under adverse possession laws, a person can become a legal owner of a property provided they’ve met certain requirements over certain period of time. In Missouri this period is 10 years. In Illinois, by contrast, its 7 years.
The exact rules vary between jurisdictions, but in general, adverse possessors need to meet the following requirements:
- The person must have continuously had possession of the property over the time period. To meet the 10-year requirement, an owner can stake claim to years from prior owners of the property in a process called “stacking”, though this would generally necessitate the cooperation of prior owners in the litigation process.
- The claimant must be on the land without permission. For example, tenants cannot claim adverse possession from a landlord or if they are utilizing the property pursuant to an easement or license from the actual landowner.
- The possession must be evident to anyone who investigates, so that the owner can be notified regarding trespassing. “Secret” possession means a claim cannot be contested.
- The adverse possessor must actually possess the property, with the true owner able to claim trespassing, for example.
- The adverse possessor is solely in control of the property, as opposed to some sort of shared ownership situation.
Adverse possession in the real world: examples of “facts” that could support such a claim
- Fencing that covers a portion of someone else’s property
- Constructing (and maintaining) tie walls, driveways, sheds into another property
- Landscaping done on adjoining property
- Construction of a building over the shared boundary line between two parcels
Adverse possession is a risk to your real estate deal
While buyers or sellers might think about adverse possession only in terms of “squatters’ rights”, there are many other, common circumstances where adverse possession can apply – and can potentially throw a wrench in the works of your real estate deal.
Common examples include:
- A neighbor constructing a building or fence on a property
- Someone repeatedly trespassing on a private walkway
- Someone living in a second property ignored by the owner
- Someone growing crops or grazing animals over several years
To avoid the risk of adverse possession, buyers and sellers need to invest in land surveys, take notice of encroachments brought to their attention, and take action when necessary (including consultation with legal counsel). While people are often concerned about being too sensitive to small encroachments, if there is any chance of an adverse possessorship claim, granting an easement (where parts of a property are “shared”) can reduce this risk.
Issues can also arise when someone tries to buy or sell a property held under adverse possession. For properties without a court decision confirming the adverse possession, there is potential for injury to the buyer – the property might be re-claimed by the actual owner or a lawsuit might be filed in future. It’s vital that you work with a title company to ensure that a property has a marketable title (free of defects and encumbrances).
To minimize adverse possession risk:
- Monitor your property for signs of use, improvements or habitation
- Create a lease (countersigned) for anyone living on your property
- Grant written permission (countersigned) for someone to use your land by easement or license agreement
- Ensure your property has a clear title (when buying or selling) – e.g., you can get title insurance coverage over these risks if you obtain a boundary survey in conjunction with your purchase of real estate
Talk to True Title about navigating adverse possession
If you’re a buyer, seller or a realtor navigating a deal that might be subject to adverse possession laws, talk to the team at True Title. We can walk you through the issues to be aware of and how to minimize your risk or exposure through title checks, surveys and formal court claims.