Averse Possession Explained

Homes are meant to be lived in. Fields are meant to be planted. That's the basis for the Old English laws that give us today's legal framework called "adverse possession."

When the real estate owners are absent for a number of years—sometimes decades—while trespassers were living there openly as if they owned it (including performing maintenance and paying taxes), adverse possession facilitates the transfer of ownership from the former to the latter.

A trespasser who has finally been granted title to the property through adverse possession laws becomes its rightful owner. That person can stay there or sell it.

So what keeps trespassers from moving into your property and claiming it as their own? All states have specific requirements for adverse possession, starting with the number of years the trespasser must live on the property openly and continuously.

Here we explain the legal requirements of adverse possession and the simple ways you can protect your real estate from falling into the hands of trespassers.

5 Criteria of Adverse Possession

Once you learn the multiple elements of adverse possession, which are colloquially referred to as squatter's rights, you will understand how this is different from the homeowner's nightmare of, say, returning from a happy vacation only to find strangers living in the house and the police won't do a thing. Trespass laws protect property owners right up until, years later, adverse possession becomes possible.

Trespassing for a certain number of years is but one criteria for adverse possession. Here are five elements of adverse possession.

1. Open and notorious. The trespasser must act as if they owned the place: coming and going through the front door, making repairs as needed, and even, in some states, paying property tax. No hiding from neighbors or the owner.
2. Hostile. This merely means the squatter didn't have permission to move in. Therefore, a houseguest or renter who refuses to leave can't ultimately own your property through adverse possession because they started living there with your permission.
3. Actual. The squatter must actually live on the property, not merely claim ownership from afar. Proof of regular maintenance can help trespassers prove that the house is their full-time shelter. Working in the field or tending to the garden are further proof that the property is actually used.
4. Exclusive. Adverse possession doesn't apply if the property sees a parade of trespassers. To claim a right to the property, the trespasser must have exclusive possession of the place all the time (but they can share it with others).
5. Continuous. A trespasser who holes up in a hunting cabin every winter or sleeps in an empty ski chalet every summer can't claim ownership through adverse possession because they weren't occupying the place continuously.

The Law Is on the Owner's Side

The above criteria protect the owner's interest by making it highly likely for the trespass to be discovered by an owner who merely stops by the property even as little as once a year.

For example, any squatter trying to hide from the owner or neighbors wouldn't meet the adverse possession requirement of living openly and notoriously. Also, any squatter who moves in only when the owner vacates for the season wouldn't meet the adverse possession requirement of continuously living on the property. To discover the kind of trespassers who might one day claim ownership through adverse possession, an owner doesn't have to exert much effort.

Finally, roommates or houseguests or AirBNB customers who refuse to leave can't claim adverse possession of the property because their possession of the place was originally permitted, not "hostile" as defined by law.

Who Is NOT Able to Claim Adverse Possession

"Squatter's rights" strikes fear in the hearts of many real estate owners. The informal term (it isn't recognized by any laws) gets applied to horror stories about roommates who stop paying their share of rent and itinerant strangers who take over a house when the owners are out of town.

As you now know form the five elements of adverse possession, a roommate can't claim squatter's rights. Neither can a tenant who stops paying rent. Neither can strangers who moved in while you were on a cruise. That's not to say you will face no legal hassles trying to resolve these problems, but remember this: The law will not "give" your property to that other person.

How to Avoid Adverse Possession of Your Real Estate

A few ways you can protect your property from the possibility of adverse possession include marking the boundary lines clearly and walking those lines regularly to spot signs of trespass.

Where walls and fences can't be erected, "No Trespassing" signs on a tree or a post can remove all doubt about where public property ends and yours begins. Otherwise the police will likely give the benefit of the doubt to, say, campers on the edge of your land.

Give written permission to someone to use your land. This instantly formalizes the arrangement, and therefore the hostile use requirement of adverse possession can't be met. Such documentation demonstrates that both parties know you own the place and the nonowner is there only because you allow it.

Likewise, offering to rent the place to the trespasser would officially turn the parties into landlord and tenant. The hostile use requirement of adverse possession is thus avoided.

The best precaution to take.

Ultimately, the best precaution to take is to stay an attentive, interested owner in your own property. If you don't live close enough to monitor the real estate yourself, make friends with neighbors who can keep an eye on things and send them little thank-you presents. If you own a seasonal getaway, consider signing it up for short-term rental in the off-season for extra income. A property management service can keep an eye on the place and perform housekeeping.

"The statutory period of time is very long," notes Tennessee attorney Hal Boyd. Adverse possession law "rests on the premise that if the actual owner doesn’t assert his rights during the statutory period, the law goes ahead and recognizes the possessor’s rights."

Adverse Possession Requirements in Each State

All 50 states recognize "squatter's rights," but they require continuous possession for a different number of years. Some also require property taxes to be paid during that time and/or they shorten the duration of continuous use if the trespasser has been paying taxes. Finally, some states lower their duration of continuous use in the presence of a deed or title—regardless of the validity of the document.

Adverse Possession Cases Are Rare

Adverse possession cases are rare, and they are much more likely to be used to settle ownership confusion due to death, fraud, abandonment, and so on. Most likely, the trespasser actually holds a deed they thought was valid—that's why they have been living there and paying property taxes all these years. From the perspective of the claimant and their neighbors, it's the owner who is the weirdo—some stranger who just showed up out of the blue and says he owns the place.

When you look at what's best for the community, most especially the surrounding landowners, you can see the wisdom of relatively ancient so-called squatter's rights. When the rightful owner is nowhere to be found (possibly dead), should abandoned farms grow over with weeds? Should empty homes fall into ruin, attracting vandals and arsonists? The law doesn't want land to go unused because that's not good for anyone.

Adverse Possession Wrap-Up

When you discover a squatter on your property, it's important to flex your legal muscle sooner rather than later. Call the police on trespassers. A lawyer can help if you need to evict someone or you want the court to order the removal of a structure on your property. For help picking a lawyer, use the American Bar Association's directory by state](https://www.americanbar.org/groups/legal_services/flh-home/flh-bar-directories-and-lawyer-finders/) Don't delay, because after a certain number of years, as detailed above, the trespasser could claim the property through adverse possession.