What Is Adverse Possession?

Adverse possession is a way of acquiring title to real property by physically occupying it for a long period of time.  As strange as it may seem, you may acquire property without the consent of the actual title holder if you possess it long enough and meet the legal requirements.  The adverse possessor, or the person occupying the land, may or may not be aware that the land belongs to another.  Under the law, the occupier’s knowledge is irrelevant which makes this type of possession more common often than people realize.  Some examples include: where a home owner puts up a fence based on an erroneous survey, and no one catches the mistake for many years; a neighbor parks his RV on the vacant lot next to his home for years and the subsequent purchaser does the same but builds a garage on the land believing the land is part of the property he has purchased.  The error may not be discovered until a purchaser attempts to build on the land, partition off a portion of it, or have the land surveyed.

While this may seem unfair, one theory advances that land use should be productive and the owner of the land should be certain.  Therefore, when an owner is lazy or does not know the condition of his property or does not visit the property then he can lose his rights to a more productive and certain owner.  It should be mentioned that government owned lands are exempt to claims of adverse possession.  However, anyone including the government, a corporation, or a municipality can be an adverse possessor.

How Do You Know When Adverse Possession Has Occurred?

In Arizona, to claim a right to property through adverse possession you must show:

  • You are the exclusive possessor.  Meaning you are the only one occupying the land.
  • You actually entered the property.  You cannot claim ownership to land where you only occasionally visited or had your eye on.
  • Your possessed the land in a way that a real owner would, in an open and obvious manner.  The possession must be appropriate to the type, size, and use of the land.  The general idea is to give the owner reasonable notice that you are in possession and to give him the opportunity to eject you.
  • Your possession must be adverse to the owners claim; in other words, without the owners consent.  If the owner in any way gave permission for you to use or occupy the property, then the claim is not adverse.
  • You have to continually possess the land for the statutory period.  In Arizona the normal period is 10 years for rights to the land.  However, Arizona says that if the adverse possessor has been paying taxes on the land and has a deed giving “color of title” to the property, he or she can claim rights to the property as long as they have been in possession of the land for 3 years.  An important part of this requirement is the “continuous” requirement.  If your possession was for anything less than continuous, you may be guilty of trespass and therefore not only forfeit your claim to the property but be liable to the true owner for trespassing.

Speak With A Knowledgeable Real Estate Attorney

To consult with one of our experienced real estate attorneys at Platt & Westby, P.C., over any questions regarding adverse possession, please contact our office or 602-277-4441.

 

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