What Is Adverse Possession in Real Estate?

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If a person spends a long enough time occupying someone else’s land, they may be able to claim that land for themselves through a principle known as adverse possession. Adverse possession grants a non-owner the title to a property as long as they meet a series of requirements.

If you’re considering filing an adverse possession claim or are worried about someone else obtaining your property through adverse possession, here’s what you need to know.

What is an example of adverse possession?

One of the most common examples of adverse possession occurs when a person drives through a portion of someone else’s land to reach a connected plot of land. If this person continues to drive through that land over a long enough period of time without the owner interfering, they can gain adverse possession.

Once adverse possession has been granted, the person has the right to be on the land, and it is no longer considered trespassing.

What are the requirements to have an adverse possession claim?

To claim adverse possession of a property, a claimant needs to meet the following 5 conditions:

  1. Hostile claim:The property must be occupied without permission from the owner.
  2. Actual possession: The claimant must be actively using and maintaining the property.
  3. Open and notorious possession: The claimant must be openly and visibly using the property, making no attempt to hide their occupation.
  4. Exclusive possession: The claimant must not be sharing use of the property with the owner or any other party.
  5. Continuous possession: The claimant must occupy the property for the full statutory period required by their state without any breaks.

How do you file for adverse possession?

The specific process to file for adverse possession will vary depending on your state. In Texas, you can file an adverse possession lawsuit at your county clerk’s office. You’ll need to provide 3 copies of a “trespass to try title” petition detailing your claim to the property.

Once you’ve brought your petition to the county clerk, you will need to have it served to the current property owner along with a subpoena. If you know the owner’s address, you can have a sheriff’s deputy or private process server deliver the necessary documents directly to them. Otherwise, you can have a legal ad published to notify them of the lawsuit.

What do you need to prove adverse possession of a property?

To prove adverse possession of a property, your “trespass to try title” petition should include:

  • A description of the property
  • Evidence that you have occupied the property for the required statutory period
  • Evidence that you have made improvements to the property
  • Evidence of title (either a deed or proof that the property owner has not disputed your occupation during the statutory period)

The specific language used in this petition is critical, so it is recommended that you draft it with the help of a real estate attorney experienced in adverse possession claims.

What is an affidavit of adverse possession?

If you cannot afford to pay for an adverse possession lawsuit, you can alternatively file an affidavit of adverse possession in your county’s real property records. This affidavit serves as an indicator that you are seeking adverse possession, and the longer it goes uncontested, the stronger your right to a property becomes.

Note that you can file an affidavit of adverse possession even if the necessary statute of limitations for adverse possession is not up. In this case, the affidavit states that adverse possession will apply when the statute of limitations ends.

How long does it take to make an adverse possession claim?

The time a claimant needs to occupy a property before making an adverse possession claim varies from state to state. While most states have a statutory period of a set number of years, the Texas Civil Practice & Remedies Code requires different lengths of occupation for different situations.

A person can make an adverse possession claim after 3 years if they establish color of title, meaning that they possess documentation indicating their right to the property. This scenario commonly occurs when a person holds a deed that incorrectly lists part of a neighbor’s property as their own.

Alternatively, a person with color of title can wait 5 years to make a claim with a higher chance of success by demonstrating they pay taxes on the property and “cultivate, use, or enjoy” it.

Without color of title, a person must wait 10 years to make an adverse possession claim.

What are the costs associated with making an adverse possession claim?

The total cost of filing an adverse possession lawsuit can vary significantly depending on the lawyer you hire. Legal fees typically range between $2,500 and $20,000, with more experienced attorneys generally charging more money.

These high legal costs are why many people opt for an affidavit of adverse possession rather than filing a lawsuit.

Can a family member claim adverse possession of a property?

Because one of the requirements for an adverse possession claim is hostile occupation, many courts will dismiss any claims made by a property owner’s family member. The assumption is that if the claimant is related to the owner, they must have implicit permission to use the property, and thus the hostility requirement cannot be met.

To gain adverse possession of a family member’s property, you will need to provide strong evidence that your relative did not consent to your occupation of the property, such as proof that you have not spoken to them for years.

Can a tenant claim adverse possession of a property?

The hostility requirement for adverse possession claims also means that tenants cannot claim adverse possession. If you have signed a lease for a property, the owner has given you permission to be on it, so your occupation is not considered hostile. This rule still applies even if you are late on rent payments.

Can you claim adverse possession on a government property?

The right to adverse possession only applies to private property. Even if you meet all the necessary requirements for adverse possession, you cannot make a claim on any type of government property.

Does adverse possession apply to easements?

An easement is a grant that gives its holder permission to use another party’s property. A person who holds an easement does not have a hostile claim on a property, so they cannot claim adverse possession.

Can you claim adverse possession on a right-of-way?

A right-of-way is an agreement that allows a person to pass through a property to get to another location. Because a right-of-way is an easement and grants permission for the holder to use the property in question, it does not meet the hostility requirement for an adverse possession claim.

Does adverse possession apply to new property owners after it is sold?

If a home is the subject of an ongoing adverse possession lawsuit, that lawsuit will not necessarily go away when the property is sold. If an occupant has spent years living on and maintaining a property, chances are they will not want to give it up just because someone new has bought it.

If you move into a home with an ongoing adverse possession claim, there is a real possibility that the claimant will end up taking the property from you.

Does title insurance cover adverse possession claims?

As a general rule, title insurance companies only offer coverage on problems they don’t view as likely to occur. That means that even if a policy does cover adverse possession claims, there will typically be a list of exceptions preventing a claim from being covered.

It’s always important to thoroughly check your insurance policy to have an accurate idea of what will and will not be covered.

How do you fight an adverse possession claim?

To fight an adverse possession claim, you’ll need to work with an experienced real estate attorney familiar with this type of lawsuit. Of course, if the claimant has solid evidence that they have earned the right to your property, you will likely lose your case.

The best way to fight adverse possession is to prevent trespassers from occupying your property in the first place. Some steps you can take to achieve this include:

  • Constantly checking your property for signs of use or asking a friend or family member to check it for you
  • Posting a “no trespassing” sign
  • Providing written permission for a person to use your property, requiring them to acknowledge that they do not own it
  • Checking that your property has a clear title

Can you sell a property that has an active adverse possession claim?

Selling a property with an active adverse possession claim can lead to complications. If it is unclear who has the right to a property, there is a possibility that it will be reclaimed after the sale. This is not a risk that most buyers would be willing to take.

If you’re looking to sell a property with an active adverse possession claim, it’s easiest to sell to a cash buyer. AMI buys homes in all conditions, including properties that may be subject to adverse possession. Contact us today for a no-obligation cash offer.

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