Adverse Possession: The Real Skinny

Photo courtesy of Roger Tufts, Maine

Q: I move to China for 20 years, leaving behind our 25-acre plot of vacant land in Olympia. During those 20 years, we do not check in on the land, nor does anyone we appoint (family, friends, etc.). Turns out the neighbors have been occupying the land during our time away, unbeknownst to us. Could the neighbors claim legal rights to the land?

A: Adverse possession is the occupation of property for an extended period of time, as defined by law, which is not legally owned by the person occupying the property. This is sometimes called squatting, or squatter’s rights. Clearly the property is unoccupied, and if a person lives at the property for long enough, 10-12 years in many states, they can come to own the property, even if they legally have no claim to it. Adverse possession can thus be said to be a means of acquiring land or homes, without ever having to pay for it.

It can’t be said that adverse possession is legal. In fact, the time of occupation prior to gaining the title of the property is specifically illegal. If the person actually owning the property chooses, he can have people who are squatting removed from the property and charged with trespassing. You really can’t just walk onto someone else’s property and claim it for your own without expecting legal repercussions. Further, in many cases, if you leave the property, you lose any time you have accrued toward adverse possession of the property (they could never leave during the 20years).

To claim adverse possession, an adverse possessor must show that he/she was in actual, open, and notorious possession of the property. The possession must have been exclusive and hostile to the title of the owner of the property. The possession must have been uninterrupted and continuous for at least 10 years. Successive occupation of the property by persons who are in privity with each other (i.e. by contract, will or blood) can be added together or "tacked on" for purposes of fulfilling the time requirements. If the adverse possessor occupies the property under color of title and makes payment of taxes, the period is 7 years. Color of title means that the person holds out that she legally has a possessory interest in the property (i.e. the defective deed includes the property in question). In addition, permissive use can never ripen into adverse possession.

While this explanation is simply my interpretation of a summary to elude to an answer to your question, as always, it is in your best interest to seek legal counsel as my expertise is as a REALTOR as I am not an attorney.