ABA Family Legal Guide

Home Ownership

Property Rights and Restrictions

Handling Property Constraints

What is adverse possession?

Although you have a right to keep trespassers off your land, under the law it's possible for someone who occupies the property for many years to actually become the owner. This entitlement is called adverse possession. It's very unlikely to occur in urban or suburban areas, where lots are plotted and homeowners know when someone else has been using their property continuously. But if you own an unvisited beach house or hunting cabin, you might not know that someone has been living there continually for years.

Adverse possession is similar to a prescriptive easement, in which, for example, a court declares that your neighbor has a right to keep his or her hedge on a strip of your land because it has been there for forty years. The difference is that while prescriptive easements concern use of the land, adverse possession ripens into actual ownership. For a claim of adverse possession to succeed, the person occupying the property must show that his or her occupation of your property was open and hostile, which means without permission. As with prescriptive easements, granting the person permission to use the property avoids a claim to ownership by adverse possession. The occupation must also have continued for a certain number of years--generally ten to twenty, but sometimes fewer, depending on the state. And in many states, the occupier must have paid local property taxes on the land.

This last requirement provides a way to avert loss of a property through adverse possession. If you suspect that someone has been living in your hunting cabin, check the property tax records for that county to see whether anyone has made tax payments on it.

A bit of vigilance will prevent problems in this area. You should post "no trespassing" signs to warn people that this is private property. Erect gates at entry points and keep them locked. Ask trespassers to leave, and call the police if they refuse. If you suspect that someone will keep on using your property (such as for a road to obtain lake access) despite your efforts, consider granting written permission to keep on doing so, especially if the use doesn't interfere with your use. This will bar adverse possession, which requires that permission not have been granted. To make the arrangement clear, ask for a written acknowledgment, and, if reasonable, a fee or payment.