Adverse Possession

July 18, 2016

Adverse possession involves taking property which does not belong to you. There is a lawful process. Still, the whole thing stinks, more than a little bit.

Adverse possession laws exist for a reason: the law wants to encourage the productive use of property. If someone uses property in a productive manner, even if he or she does not own it, the law gives him or her the benefits attendant to ownership.

Statues define the necessary elements for an adverse possession claim, but court decisions have fleshed out t issues. In Arizona there are several adverse possession statutes; however, the most commonly used statute is A.R.S. § 12-526. The statute permits a transfer of title to someone holding the property in a peaceable and adverse manner for 10 years.

To establish adverse possession the party claiming ownership after 10 years must establish that his or her possession was open, visible, continuous, and unmolested. And adverse. Adversity trips up many people who want to claim ownership of property they have been using. Intuitively, if you have permission it seems like you are in a better position than someone who does not. In the world of adverse possession, however, permission only validates your use, and gives you no ownership or other rights.

“Open and visible” matters. If no one knows you possess property which does not belong to you, you cannot claim ownership after 10 years. “Open and visible” does not, however, require substantial use. Having your neighbor’s property within your boundary wall likely supports an ownership claim, even if you plant no flowers or trees, but a wall is not necessary. 24/7 use is also not required.

The use must be continuous over the 10-year period, although a claimant can “tack” use by someone before him or her. So, if I own a home and part of my property sits in my neighbor’s yard, the fact that my neighbor has been three different people over the past 10 years doesn’t matter. Similarly, the fact that three people may have owned my property during the 10-year period doesn’t matter … unless any one of those three “people” happens to be the United States of America.

About the USA as a landowner. Many years ago I represented a couple with a large and lovely desert home. Next door, the neighbor decided to construct—and did construct—a brick putting green with fake grass. On my clients’ property. The adverse possession claim depended on grass, maintained—allegedly—by the neighbor and his predecessor. Alas, my clients purchased their lot from the United States of America. It owned the property through a forfeiture from a marijuana dealer. It only owned the property long enough to record the forfeiture order and the deed to my client, one after the other, but that moment in time broke the 10-year chain.*

Prescriptive easements are a variant of adverse possession claims. With a prescriptive easement the claimant relies on nonexclusive use, without permission, to gain the right to continue using the property in the manner in which it was previously used. Is someone hiking over your property? Using part of your property as a shortcut to get to her house? These uses create potential prescriptive easement claims.

I tend to be pretty agnostic about lot lines, at least where the issue involves very small amounts of property. If the wall is not right on the line, there is rarely any reason to knock it down. Moving the line in the public records represents a much better solution. However, when someone possesses or uses property in a meaningful way for a long time, without permission, it was probably time to deal with that situation a while ago. Granting permission or preventing the use—gates, walls and fences, ditches, etc. can be very effective—represent good solutions.

*A bulldozer destroyed the brick putting green with fake grass, soon before my client husband passed.  A good outcome!

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