How to Take Property by Adverse Possession


Under some circumstances, you can take land that doesn't belong to you, occupy it and eventually become the legal owner. Although squatters occasionally take property by adverse possession, it's more common for public utilities to begin paying unpaid taxes on unoccupied land and eventually become the legal owners. A neighbor may treat a border area as her own when it actually belongs to the individual who lives next door, and if this goes on long enough without objection, she may become the legal owner.

How Adverse Possession Works

Adverse possession begins when an individual or entity takes, uses or otherwise occupies land that legally belongs to someone else. According to attorney Harry J. Garrity, government bodies favor the use of land over disuse. An article by Harvard Law School's William C. Marra mentions this reasoning, as well as four related theories, including the issue of quiet title. This proposes that the law encourages the sale and transfer of property by assuring a buyer that whoever now physically possesses the property has the right to sell it. Marra points out that the quiet title justification isn't particularly relevant in an age when all title records are fully available from local governments. The law remains on the books in many local and state governments nevertheless and challenges to it in the 21st century have had mixed results.

Four Requirements to Take Adverse Possession

The legal website Nolo explains four conditions necessary if you want to take property by adverse possession.

The action must be hostile. This doesn't mean coming in armed. Even unknowing possession is commonly considered hostile when the taking was not agreed on by the two parties. Deliberate trespass and inadvertent encroachment can qualify as hostile.

The trespasser's possession must be actual. This word appears in many statutes governing adverse possession. Some statutes require that you confirm the reality of the possession by living on the property or improving it.

The possession must be open and notorious. It must be obvious to anyone looking at the property that you're occupying it.

The occupation must be exclusive and continuous. You can't share occupancy of the property with anyone else, including the owner. You can't come and go for extended periods of time. "Continuous" doesn't mean the trespasser can't leave the property at all. Exactly how long you must occupy the property varies from state to state. It takes 20 years in Massachusetts, but only five years in California and Montana, provided you pay the property taxes during this time.

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