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What You Don’t Understand About “Squatters’ Rights”

by | May 31, 2024

Squatters’ rights (aka adverse possession) is a great conversation starter; “Did you know that you can take title to your neighbor’s land if you are a squatter on it for long enough?” I guess this depends on the kind of conversation you’re trying to start–does a heated argument count?

Adverse possession, also known as “squatters’ rights,” is a strange legal concept that generally allows a trespasser to end up actually owning the land on which they trespass if certain conditions are met. This sounds odd, but it’s really quite simple–just kidding, it’s not simple at all, and may in fact be stranger than it seems.

Part of the reason that adverse possession appears so complex is that everyone online has a very different perception of it. For example, countless articles say things like “adverse possession is rare” and online discussion boards are filled with quotes like this one from an attorney: “Title By Adverse Possession is a myth.” However, between 1960 and 2015, there were over 5,000 legal cases involving adverse possession, an average of 92 cases per year, according to an excellent article on adverse possession by Jennifer Hiatt at The Center For Rural Affairs. Thus, adverse possession is certainly not rare enough to be a myth, though it is likely that most property owners will never experience a claim for adverse possession.

Part of the reason for this wide variety of opinions is that some states have very strict laws on adverse possession, and therefore see very few “squatters’ rights” claims, while other states have an extremely lax take on this topic. One of the most significant differences among state laws concerns whether a trespasser can act in bad faith, or whether they must act in good faith to bring a successful adverse possession claim.

Why would any law allow a trespasser to act in bad faith and still end up legally taking land they did not originally own? The answer goes back to English common law, when all land was essentially rented from the monarch. Lords or barons occupied land at the pleasure of the crown, and could not pass this land to their heirs without the crown’s permission. Land ownership did not exist in the way that it does now; in the United States, individual control and ownership of property is emphasized, but this individual control of land simply did not exist for a large part of English history.

In feudal England, land was defined by its usefulness to the crown–if the crown did not approve of the land’s use, it could be seized and redistributed. Land was to be maintained and used productively, primarily for farming. Thus, land was defined by its use rather than by its ownership–land that was not maintained and used productively was seen as a waste. The law of adverse possession came from this mindset; as land began to be owned by individuals rather than the crown, it was necessary to ensure that good farmland was not left fallow. If land was not being maintained or used, and a farmer began putting it to “good” use, the law of adverse possession allowed the farmer to own the land after a certain period of time.

This part of English common law followed settlers to the United States, and still exists in U.S. laws. One common use of adverse possession in the United States is for redrawing property lines that have long been misrepresented. For example, imagine that two neighbors have a fence that misrepresents the original property lines, and one owner discovers this misrepresentation after the fence has existed for decades. This owner now wants to rip down the fence and take back their property, and accuses their neighbor of essentially stealing land. However, the other owner files a claim for adverse possession, arguing that they aren’t stealing–the other owner had decades to take back their property, but never did. This adverse possession claim may well result in the court upholding the current fence’s boundary lines, effectively redrawing the original boundary lines based on the decades-old fence. The owner that wants the fence ripped down has then lost some of their land to their neighbor.

Adverse possession claims must involve open and notorious possession by the adverse possessor, meaning that they can’t hide their land claim. This possession must be long-standing and uninterrupted, and it must be exclusive (the adverse possessor must treat it as their own land). Additionally, adverse possession must always be hostile, which is the most confusing element of this legal doctrine.

Hostile in this case does not mean that the adverse possessor must use violence of some sort to take the land; hostile simply means that the possession of the land must be adverse to the original owner’s claim. This prevents a renter from taking ownership of property from a landlord simply because they’ve been renting for a long time. Ironically, the best way to prevent a claim of adverse possession is to give the squatter permission to be there. If the land owner has given permission for the use of the land, the adverse possessor’s claim cannot be hostile, which takes the adverse out of adverse possession. Use of land with an owner’s express permission generally cannot result in a claim of adverse possession.

The most controversial part of adverse possession in the United States involves the adverse possessor’s original intent. Many states have enacted laws that adverse possession cannot be in bad faith. For the most part, this means that the adverse possessor must have genuinely believed that they owned the land from the start of their occupation. Imagine that someone is fraudulently sold some land, and they begin occupying it and paying taxes on it. After a period of years or decades, the absentee original owner discovers their land is occupied and tries to have the occupiers of their property evicted. These occupiers may have a legitimate claim for adverse possession, and may be able to take title from the original owner, because they acted under the sincere belief of their ownership, even paying the appropriate taxes.

Note that in this example, the occupiers are trespassing on the land unintentionally, but their claim to the land is hostile with respect to the original owner. Remember that “hostile” simply means that their claim is adverse to the original owner’s claim, not that their claim is in bad faith or violent.

In many states, however, there is no explicit law that the adverse/hostile part of adverse possession has to be in good faith. This is the most shocking part of adverse possession for many people. It’s somewhat understandable that a long-held, good-faith misunderstanding of property lines could result in a change in a title change in property boundaries. However, if there’s no requirement to prove that an adverse possessor’s claim is in good faith or based on an honest mistake, then adverse possession feels a lot more like theft. To be fair, this type of “theft” requires a lot of work and time, so it isn’t exactly easy to execute.

Many states are slowly changing their laws to add a good faith requirement to claims of adverse possession. Often, this occurs after an egregious adverse possession claim makes its way through the courts. In Colorado, a local judge–as a private citizen–made a path and put a few plants on his neighbor’s empty lot, and after the statutorily required time limit of 18 years, filed a claim for adverse possession. The judge ended up legally taking title to a third of the neighbor’s lot, a lot on which the neighbor had planned to build a house for retirement. The new property lines made it impossible for the neighbor to build a home, which ignited a years-long legal battle that received national attention. On appeal, the judge was given title to 12% of the neighbor’s property, rather than a third, but the public still viewed this judge’s adverse possession claim as manipulative and in bad faith. Colorado had no requirement that the adverse possessor act in good faith, so whether or not the judge had ill intent was beside the point. Shortly after this case was settled, Colorado passed a law that any claim of adverse possession must be in good faith.

Before you become terrified that everyone is trying to adversely possess your property (or perhaps you’re excited that you could adversely possess someone else’s property), remember that successful claims usually require years or decades of adverse possession that is constant and in plain sight. Even in states where bad faith adverse possession is legal, this type of claim is fairly difficult to make. That said, it never hurts to keep an eye on any property you own, and to verify your property lines with the county recorder.








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