How "Hostile" the Use of Property Must Be for Adverse Possession Claim

The legal doctrine of adverse possession allows a trespasser to establish a claim over another person's property through extended use, if the trespasser also meets various other legal requirements. One of these is that the trespasser's possession be "hostile" (as well as continuous, actual, exclusive, and open and notorious.) But how "hostile" do a trespasser's actions need to be? Must the trespasser be angry or unpleasant with the true property owner?

The short answer is no. "Hostility" does not mean malice or ill will. In the adverse possession context, "hostility" means that the individual claiming possession of a disputed piece of land must demonstrate to a court that their possession is an actual invasion of, or infringement upon, the true owner's property rights. We'll discuss some of the nuances below, including how:

• using another person's property while believing it to be yours can be "hostile"
• the property owner can make sure the trespasser's use isn't "hostile" by granting permission for the use
• a property renter can never be considered a hostile possessor, and
• lack of hostility can be used by the property owner to defeat an adverse possession claim.

Mistaken Possession of Property Can Be Hostile

Imagine that you build a fence, honestly believing that you're building it at the border of your yard. Three decades pass. Your neighbor then discovers that your fence was actually built two feet into his property, meaning that you've spent the past 30 years living with a slightly wider yard than you held legal title to.

Even though you didn't realize at the time that you were building the fence on your neighbor's property, your possession of that area of land might still be considered "hostile" within the meaning of your state's law, because your use infringed directly on your neighbor's property rights. In short, the element of hostility can be found even though the possession occurred inadvertently or by mistake.

However, state laws do vary on this topic. In some, the trespasser must actually be cognizant of having no legal right to be on the property. At the other end of the spectrum, a few states' laws require the trespasser to have made an innocent good faith mistake in occupying the property, such as by relying on an invalid or mistaken land deed.

No Hostility If Property Owner Consents to Trespasser's Use

A claim of ownership through adverse possession will not succeed when the trespasser actually had the authority to be on the premises. A trespasser who uses land by permission from the owner can never gain title by adverse possession, no matter how long that use might continue.

In other words, if your friend tells you that you can swim in his backyard pond whenever you like, and you do so for decades, while he never uses it at all, you can't succeed on an adverse possession claim. There's no hostility, since you were given express permission.

In this spirit, many courts tend to reject adverse possession claims by family members, since it's presumed that family members would give permission to occupy parts of their property. Thus, if you live in your uncle's garage for the required statutory period, or build a shed on your mom's yard, don't expect to claim it via adverse possession. Courts will assume that your presence there was not hostile.

No Adverse Possession for Renters

In line with the above, a renter cannot establish a claim of adverse possession against the owner and landlord of a piece of property. This is generally true regardless of how much rent was paid, or how long the renter possessed the land.

How the "Hostile" Requirement Helps Property Owners Defeat Adverse Possession Claims

If you are a property owner and you notice that a trespasser or neighbor is using your land, the requirement that the trespasser's use be "hostile" gives you a couple of options to protect your property rights. First, you can speak with the person and give your permission for the use/presence. Or if you prefer not to give permission, you can simply clarify your property rights. Chances are, the trespasser will then simply leave without further ado.

Second, you can have the trespasser sign a rental agreement. For even a nominal amount of money, a signed rental agreement would supply undeniable evidence that the trespasser was using a portion of your property with permission. Once that permission is established, the trespasser isn't really a trespasser. They wouldn't be able to meet the burden of showing hostile possession, and therefore wouldn't be able to claim title through adverse possession.

Again, however, you're under no legal obligation to provide such permission. This would mostly be appropriate in situations where you really don't mind the person's use, and want to maintain good relations; such as with a neighbor who has planted flowers along your property line. A more direct option in dealing with adverse possession is to contact an attorney and file an action to eject the trespasser, as well as calling the police.