Understanding Squatters’ Rights

Here's what you need to know about Adverse Possession of Land, better known as squatters' rights.
By the MOTHER EARTH NEWS editors
May/June 1984
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This obscure law could "steal" your titled land. 
PHOTO: FOTOLIA


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If you own or are about to buy land, keep Linda Hansen's experiences in mind. Under certain conditions the title to all or a portion of your land can be challenged and lost if some other party simply uses the property—before or after you purchase it—for a specific length of time established by state law. This is called adverse possession of land . . . commonly referred to by lay people as squatters' rights. 

The concept was originally devised in medieval England to encourage the cultivation of land (and to help fill the kingdom's coffers, since more taxes could be collected on property that was occupied or otherwise developed). The intent of the law, therefore—to assure that landowners make reasonably productive use of their property—was (and, debatably, still is) more or less sensible. But it may also present pitfalls to the unwary.

In fact, in some cases you can be subject to a claim of adverse possession even though you've had a title search conducted and have purchased title insurance . . . a fact that makes it all the more important to understand the circumstances under which such a situation can evolve.

Here's what Les Scher has to say about the subject in his excellent book, Finding and Buying Your Place in the Country. (Reprinted with permission of Macmillan Publishing Company.)

For a person to take your title away from you, his use of your land must be [1] hostile, [2] actual, [3] notorious, [4] exclusive, [5] continuous, and [6] under a claim of title for [7] a specified period of time. Each of these elements must be met by the person, or "squatter, " who seeks to adversely possess your land.   

  1. The possessor must use your land without your permission and must deny the fact that you are the true owner. Thus, if you give the person permission to, or specific orders not to, use the land, he can never gain title by adverse possession. His use must be "hostile" to you.   
  2. The person must be making "actual" use of your land. He must be living or working on the land in some fashion. Some activities that have led to adverse possession of portions of land in the past include clearing brush, cutting trees, planting crops, putting in ditches, erecting a building, fencing off a section of the land, and living on the land.   
  3. The user must be "notorious" in the manner in which he is on the land. He cannot sneak around the owner's property in such a manner that he could not be discovered and his activities must be visible to the owner if he were to examine his land.   
  4. "Exclusive" possession means that the user must be on the land alone. If he is there with the owner or against the owner's specific orders, he cannot get title to the land.   
  5. Use of the land must be "continuous" from the beginning of the prescribed time period to the end, although seasonal use for the prescribed number of years is generally permissible.   
  6. The possessor must claim that he owns the land, even if he is wrong. His actions will speak for themselves in this regard. If he is acting as if he believes he owns the land, he is taking the property under a "claim of title. " If he ever admits that he knows he does not actually own the land, he cannot claim adverse possession.   
  7. The time limit for acquiring adverse possession is called the "statute of limitations." All of the above elements must occur for a minimum length of time before adverse possession "ripens" into title. The minimum period varies among the states, from five years in California to twenty-one years in Pennsylvania. It runs from the time the possessor begins to use the property and continues running even if the property is sold by the actual owner.   

Acquiring the Land

The most common instance of acquiring land by adverse possession occurs when a neighbor unknowingly puts up a fence that encloses a portion of an adjoining landowner's property. If he meets all the above requirements and has his fence up for the prescribed period of time, when he discovers that he has fenced in the neighboring land he can go to court and get a court order, or declaratory judgment, stating that he now owns the land he has enclosed. Another common situation that leads to adverse possession is when a part of a building, a section of an orchard, or other improvement encroaches on a neighbor's land and this "mistake" is not discovered before the prescribed time period has elapsed.   

The willingness of the courts to award title by adverse possession varies among the states. For example, some states require that the possessor have a document, such as a faulty deed, that appears to give good title but actually does not. Other states require that taxes be paid for the prescribed period by the user in order for him to gain legal possession.   

It's important to remember, too, that since a standard title search ordinarily reviews only matters of public record—such as deed transfers—it's not likely to reveal whether someone has been, or is, using the land as an adverse possessor.

Furthermore, title insurance policies—which can differ considerably from company to company—vary in regard to the protection they provide against claims of adverse possession. Some specifically except claims that are not a matter of public record but that could be ascertained by inspecting the land and/or making personal inquiries. Others exclude only claims of adverse possession that are known by the buyer at the time of purchase . . . while still others (which usually require a legal survey) provide more or less full protection.

It's generally agreed that getting a legal survey of the property you're considering is one of the best ways to avoid a claim of adverse possession. And title insurance is also strongly recommended . . . but do be sure to read the sections in the policy that list exceptions to coverage, and make sure you understand their implications fully. In addition, most attorneys advise that you get a warranty deed for any piece of real estate: Such a deed guarantees that (among other things) the seller will defend any claim against the title by another party.

And finally, you might also want to remember that even though the claim of adverse possession made against the Hansen family didn't hold up in court, it nonetheless created substantial problems for them . . . and resulted in their eventually selling the land.

If you're considering buying property, a wise first step would be to inspect the parcel yourself for signs of use by others. It's also a good idea to pay a visit to your prospective neighbors to get a feeling for where they consider the property lines to be. Any indication that anyone has been using (or might simply be inclined to contest your right to buy) the land in question just might be sufficient reason to think about shopping for real estate someplace else. 


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