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Adverse Possession

Trial Lawyer

Adverse possession is sometimes called “squatter’s rights.”  Adverse possession is a principle that allows a trespasser to take title to property when the trespasser possesses another’s property in a way that outlasts the statute of limitations and allows the trespasser to take good title to property away from the true owner.  More simply, adverse possession allows a trespasser to gain legal title to a plot of land after staying on the land for an extended period of time. The following is a brief overview of adverse possession by a trial lawyer from Eglet Adams.

Five Elements

There are five (5) elements to establishing adverse possession: (1) actual possession; (2) possession that is open, notorious, and visible; (3) the trespassing is continuous; (4) the trespassing must be at least for the length of the statutory period; and (5) the trespassing must be hostile.  Notably, for adverse possession to occur, the property owner doesn’t actually have to know that the trespasser is on his or her property.

For element one to be met, the trespasser must make an actual entry giving them exclusive possession – i.e., they must intend to possess the property and exert control over it. To have open, notorious, and visible possession, the possession must give clear and unequivocal notice to the land’s true owner that their possessory rights are being invaded. The trespassing must be continuous, it must be more than merely sporadic or occasional. Each state varies on the proscribed statutory period. Finally, the trespassing must be hostile meaning that the trespasser must not have the consent of the owner to be there.

One common example of adverse possession is the continuous use of someone else’s house.  Imagine that you own a summer house in San Diego, California. Next, imagine that your nephew recently graduated from San Diego State University. While still looking for a job, he asks you if he can stay at your place until he gets on his feet and makes enough money to buy his own. You agree and he moves in shortly thereafter. Fast forward 10 years and he still hasn’t moved out and now is making a claim that he has adversely possessed the property.  More often than not, in the case of a dispute, the law will favor your nephew’s interest in the property and grant him the title.