UNDERSTANDING ADVERSE POSSESSION

Property owners should educate themselves on how to protect their property.

Instinctively, the ominous name "adverse possession" signifies an aggressive and problematic situation a landowner should try and steer clear of.  It is.

Adverse possession is a legal doctrine which allows a trespasser to gain legal title to land based on meeting certain criteria. Most people are unaware of adverse possession laws and their consequences. Property owners should educate themselves on how this might happen to them and learn steps to protect their property interest before a dispute arises.


DEFINED: TRESSPASSERS, SQUATTERS AND ADVERSE POSSESSORS 

A trespasser knowingly and intentionally occupies property without the consent of the landowner. Trespassing is usually considered a criminal matter. 

A squatter is someone who stays on a property without permission, without paying rent and under the claim of ownership. Squatting is usually considered a civil matter. 

An adverse possessor is more premeditated in their actions intentionally trying to acquire title of the property.

HOW CAN ADVERSE POSSESSION HAPPEN?

There are certain circumstances under the adverse possession doctrine that allow squatters to legally gain title to property. These rules apply not only to whole plots of land, but sections of the land as well.  

Perhaps most obvious in adverse possession is that the adverse possessor must be physically present on the property and acting as if they own it.  The occupation must be  "exclusive," meaning the property cannot be shared with other unrelated people. Other conditions are living on the property knowing it belongs to someone else and being "open and notorious." "Open and notorious" means living in plain sight for anyone to see. Finally, the adverse possessor must occupy the land for a legally set period of time, which varies by state. 

In California, squatters can make an adverse possession claim only when they have openly lived at the property and paid property taxes for five years. Many claims are thwarted because of this requirement. 

BE PROACTIVE

Take these steps as preemptive measures against an adverse possession claim: 

  • Post "No Trespassing" signs.
  • Periodically inspect the property; signs alone are not enough. 
  • Erect a locked gate at the property entryways. 
  • If there is a squatter living on the property take the proper steps to assert your ownership.
  • If someone desires to use a portion of your property, get a written agreement.
  • Take a further step by filing a copy of your agreement with the proper county recorder. 
  • SEE A LAWYER for advice and any time it appears that anyone is using or occupying your property without permission. 

WE CAN HELP 

The attorneys at Khinda Wilson, LLP have experience in commercial and residential real estate, landlord representation - including eviction and unlawful detainers - and are experienced with claims of adverse-possession. 

CONTACT US TO SCHEDULE A CONSULTATION

*The information presented in this article does not constitute legal advice and is not intended to create an attorney-client relationship.  The information presented in this article is not tax advice.

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