As a landlord or property owner, the topic of adverse possession is an important one. Homeowners must be careful not to find themselves in a situation giving another party a legal standing to claim the property. Take a look at how a squatter can become an owner and some steps you can take to prevent it from happening to you.
What exactly is adverse possession? It is the process by which one party can legally seek to acquire the title of real property without going through the typical process of making a purchase. When the party who uses the real property does so obviously, openly and notoriously, with hostility, and over time. In short, through the simple act of occupying a parcel, the trespasser can seek to take legal ownership of it under certain conditions. A san antonio real estate attorney may be necessary.
Homeowners Have Rights
The first misstep in the process is for the homeowner to fail to assert their legal rights. Homeowners have the right to keep intruders off of their property. Many opt for fencing, warning signs that warn against trespassing, or demanding that the uninvited visitors remove themselves. The landowner will have increased support in removing trespassers if there is a repeated threat of harm. The landowner might consider asking the local law enforcement for assistance. The officer can also make an arrest and remove the trespasser.
What happens if the legal owner is unaware or doesn’t take steps to remove the trespasser? In that case, the trespasser may begin using the property as their own. If there was no agreement made between and owner and one who might use the property, the continued use could become the basis for losing the property.
There is no limit to the amount of land an illegal occupier can gain. It could be just a couple of feet, say in the circumstance of a fence erected just over the parcel boundary, or hundreds of acres. There doesn’t even need to be an intent to gain the land on behalf of the occupier. Take a look again at the example of a fence built over the legal boundary. The adverse possession may have been an honest mistake. Perhaps the neighbor was misinformed about the boundary line until some time after the fence was already in place.
What Happens In Court
There are many possible scenarios where a dispute over land ownership and boundaries can become a matter for the courts to decide. When these questions arise, it’s often easiest to resolve the issue privately between the parties. However, most people who find themselves with some supposed legal claim are remiss and willingly give up the land they may believe themselves to be entitled to. At this point, to solve the dispute, the parties can seek the help of the court. The owner can sue the party who is possessing or using the land. Likewise, the land’s actual possessor can petition the court to issue what is known as a quiet title, meaning the court declares the trespasser to be the legal owner.
The Case For Adverse Possession
When such cases appear before the courts for a decision, there are a few factors the judge will consider. For the trespasser to gain ownership by adverse possession, there is a requirement for possession to have been hostile, actually possessed, open and notorious, as well as exclusive and continuous.
The legal definition of hostile is not the same as the standard definition. In matters of land disputes, hostile is synonymous with unwelcomed and is used in three different types of scenarios. The first is when the occupier does not even know another owns the land. The most obvious is when the trespasser knows that they are trespassing. And, finally, there is the incidence of a good-faith mistake. Here, the occupier did not purposely seek the use of the land but instead had been occupying or using the land by mistake, typically due to an error on the title, deed, or through an incorrect boundary survey. Not all states recognize the good-faith mistake in favor of the occupier.
Use Or Possession
A key point in an adverse possession claim is for the trespasser to have actual possession or use of the property. Often, the court will expect to see that the trespasser has already established a pattern of treating the land as an owner might. This can include an established record of maintaining and improving the property.
Open and Notorious
In this consideration, the trespasser has not made efforts to conceal their use and possession of the land. The use has been noticeable and, assuming that the landowner made an effort to investigate or visit the property, the owner would’ve known a trespasser was present.
Exclusive and Continuous Use
A final hallmark of adverse possession is that the trespasser, and exclusively the trespasser, has made continuous use of the property. The amount of time in which the trespasser must collect to meet this threshold varies by state. Here, the determining factor is that the land has been used and occupied without interruption. A trespasser may not claim rights if the property was used only sometimes or inconsistently.
Prevention Of Adverse Possession
As a landowner, there are a few actions that may deter, if not prevent, loss of property through adverse possession. First, make sure that you are aware of what is happening on your property. Always post “No Trespassing” signs and fence the area where possible. This demonstrates that you have made an effort to prevent others’ use of the land. If you know of someone using the land, give written permission and ask for documented acknowledgment that they are operating with the owner’s expressed and temporary consent. You might offer the use of the land through a rental agreement. All of these options can help discourage, though not necessarily prevent, an adverse possession claim.
Seek A Lawyer
Hopefully, understanding how the process of adverse possession can happen will help you avoid it happening to you. When all efforts to prevent a trespasser from seeking legal ownership of your property, you may need to seek legal help. It can be a last resort to get advice, have someone represent your claim, coordinate the claim through the courts, and help you to navigate the expectations that the law may have of you in this unique position.