Understanding Squatters’ Rights

Here's what you need to know about Adverse Possession of Land, better known as squatters' rights.

| May/June 1984

  • Squatters' Rights
    This obscure law could "steal" your titled land. 

  • Squatters' Rights

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.   

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