Frequently Asked Questions About Claiming Adverse Possession Over Land

Although adverse possession laws vary by state, they're a traditional way of acknowledging that long enough use of a piece of land can lead to ownership.

There's something counterintuitive about adverse possession laws. You basically steal someone's land and get away with it? Still, there are underlying policy reasons, and such laws remain on the books. Here's some help puzzling out the finer points.

Question: Prior homeowner and I both used neighbor's land at times—can I combine the time for adverse possession?

About four years ago, we bought a suburban home from a couple who'd lived there for about ten years, and told us how much their children enjoyed using the pond on its border. Sure enough, our children have been enjoying swimming in the pond each summer for the last five years. But recently, the neighbor who borders our pond had a land survey done. His lawyer sent us a letter telling us that the pond is actually on his side of the property, not ours. Is there a way we can claim ownership of the pond, based on our use, the prior owner's use, and the fact that our neighbor never uses the pond?

Answer

It’s possible that you’ll be able to claim adverse possession and gain title to the pond, depending in part on your jurisdiction. Each state requires a slightly different number of years of adverse possession in order to gain title, typically between five and 20. Also, the trespasser—in this case, you—must have occupied the land continuously for the full statutory period.

The trespasser must do this in a manner consistent with how an owner would treat the land. Your situation presents two questions, regarding continuity of use and meeting the statutory period.

First, your children have used the pond intermittently, only in summer. This should be acceptable to establish adverse possession, since the owner of a pool or pond would typically swim solely in the warmer months.

The second question is whether you can meet the statutory period. While this period is different in each state, your five-year use of the pond is likely not enough. However, the prior owners of your property apparently used the pond for at least ten years. Most states allow “tacking” of adverse possession periods. When possession is continuous between one owner and the next, and the prior owner sold directly to the current owner, the time in possession can be added together to fulfill the statutory period. In other words, you could combine your five-year possession with the prior-owners’ ten-year possession to get 15 years, which is enough to meet the statutory period in many states.

So, in short, you may be able to establish title to the pond by adverse possession. Consult a real estate attorney for a full analysis.

Question: Can I receive adverse possession over land if my state allows it but homeowners' association doesn't?

I live in a gated suburban community governed by a homeowners' association (HOA). Part of the HOA governing documents say that no homeowner can claim adverse possession over land by another homeowner. I've lived there for 12 years. For all that time, I’ve been planting trees towards the back of my yard on land that is technically owned by my neighbor. He's never said anything about my planting of the trees or my regular presence on his land for pruning and maintenance. In our state, the statutory period required for adverse possession is ten years. Any chance I can make a claim to acquire title to that portion of his land, despite the provision in the homeowners' association agreement?

Answer

In a normal situation, you would have met all the requirements of adverse possession—namely that your use of the land is hostile, open and notorious, exclusive, actual, and continuous for the period required by your state's law. Courts have expressly held that planting trees and gardens is a form of possession and occupation of land, especially if you regularly care for those plants.

The problem, of course, is the HOA document, which both you and your neighbor signed upon moving in. This is essentially a contract between you and the association: You get certain services, but you also give up certain rights. (Often, in gated communities, plots of land are precisely the same size, and the goal of the association is to maintain parity between the properties as well as civility among the neighbors. This might be why your association bans claims of adverse possession.)

You might try to argue that your neighbor should be subject to adverse possession claims like anyone else. However, he could argue that he was giving you implied permission to plant trees on his land, since he knew that under the homeowner’s agreement, you could never acquire legal title to his property. In other words, he was relying on the HOA's protection. He could further challenge your right to sue for title at all, given that you essentially waived your right to seek title by adverse possession under that same agreement. Indeed, a person can waive his or her rights by contract, and you would have a difficult time establishing why the HOA contract should not be honored.

Consider also the practical ramifications of suing your neighbor. Not only would it create tension with the neighbor, but with the HOA, since you’re effectively trying to bypass its common regulations. You might be better off simply continuing to enjoy your trees, since your neighbor does not object to your use of the land.

Question: Can I make an adverse possession claim against a family member?

I live in a small town with my wife, and my cousin Bob. His family owns the home next door. For about 12 years, I’ve been using a patch of land that’s technically part of his property, for gardening my tomato plants. He’s never asked me to stop, or said anything at all about my use of his land. Because I might sell my property one day, I would love to be able to acquire official title to that bit of land to increase the value of my home. Can I acquire it through adverse possession?

Answer

You seem to have met all of the basic legal requirements for acquiring title to a piece of land through the doctrine known as adverse possession. Your use of the garden has been open, hostile, exclusive, actual, and continual for the statutory period. So what’s the problem? Many courts do not believe that family members can make adverse possession claims against one another.

The hostility requirement means that the person claiming possession of a disputed piece of property must demonstrate to a court that his or her possession is an actual infringement upon the true owner’s property rights. Courts often assume that members of the same family do not “infringe” on one another’s property. Siblings, cousins, and parents typically give one another permission, express or implied, to use one another’s property.

A court might assume that Bob gave you implied permission to come onto his land, and thus your use of the garden was not truly hostile; Bob merely assumed you were “borrowing” it for your tomato plants, rather than “possessing” it.

For you to successfully overcome that presumption, you would need to establish that, even though you’re related by blood to your cousin Bob, he never gave you express or implied permission to use that patch of land. You will need to prove, for example, that you rarely interact with one another in a social context, and that Bob never intended to allow you to use his land. Remember, permission is an absolute bar to a claim of adverse possession

Question: Can I gain title to land by adverse possession if permission was implied?

I live in a suburban neighborhood and my property borders another home with a tennis court. The tennis court existed before my neighbor moved in, and she’s never used it. About ten years ago, after realizing that she never used it, I began playing on it with my wife. We never asked permission, but she’s seen us use the court multiple times and never asked us to leave. She’s only made statements like, “You guys have fun! Enjoy the weather.” I would like to simply own the tennis court outright, since she never uses it and I’ve been using it every spring and summer for so many years. Can I acquire title by adverse possession?

Answer

A person can acquire title to a piece of property using the legal doctrine of adverse possession by meeting five principal requirements—the possession must be open and notorious, hostile to the interest of the owner, actual, exclusive, and continuous for the statutory period.

Here, assuming that the minimum time period set by your state's law on adverse possession (the so-called "statutory period") is ten years, you seem to have met that requirement. Though you use the tennis court only in the spring and summer months, that would be legally acceptable, since those are the seasons when the true owner would be expected to play tennis.

Your possession also appears to be exclusive (it’s okay to “share” with a spouse, since the true owner would also be expected to share with his or her spouse), actual (you are physically occupying it) and open and notorious (anyone walking by would see that you were playing tennis there as if you owned the court).

But was your possession hostile? One cannot acquire title by adverse possession if the owner gives permission to use the land. Permission is an absolute bar to a claim of adverse possession, since legally speaking, you’ve merely been given a revocable license to use the property. Here, your neighbor has apparently noticed your use of the tennis court, but has never really said anything one way or another about your possession. She did not say, “Get off my land!” But she also did not give you explicit permission to use the tennis court or ask you to sign a lease. Her statement, “You guys have fun! Enjoy the weather” is ambiguous as to whether or not she realizes that she owns the tennis court.

Therefore, you might have a claim for adverse possession. However, keep in mind that your neighbor might contest your claim by arguing to the court that she always knew that you were using her tennis court, and that her words were meant to signal her implied permission. Implied permission, just like explicit permission, will destroy a claim of adverse possession. A court would need to conduct a factual inquiry—carefully considering your neighbor’s statements and perhaps testimony of other witnesses—to determine whether or not permission was implied.

It is not uncommon for ambiguity to exist when it comes to establishing permission. Conversations between neighbors about these issues tend to be awkward, and many would prefer to avoid confrontation and simply allow a neighbor to use land. Given this ambiguity, this might be a simpler dispute to resolve outside of court. You clearly value the tennis court much more than your neighbor does, since she hasn't used it in a decade. Perhaps you could work out a rental agreement where you pay her a fee each season. Or perhaps you could purchase title to the court outright. In either case, you could turn this potentially messy situation into a win-win for both you and your neighbor.

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