Who Can Claim Property Based on Adverse Possession in Alaska?

When can a trespasser or encroacher in Alaska claim legal title to a piece of land?

Alaska is the Last Frontier, home to hundreds of thousands of Americans. Whether you own a small home outside of Juneau or a large townhouse in Anchorage, property owners should be aware of the doctrine of adverse possession. This obscure legal doctrine can allow a neighbor or trespasser to essentially squat on your land and eventually claim legal ownership.

To make sure that your existing land remains yours—that is, that a neighbor or trespasser can’t lay claim to a portion of your land after having encroached on it for a while—it’s worth familiarizing yourself with Alaska’s laws on adverse possession. Moreover, there may be times when you yourself need to assert an adverse possession claim over land that you feel you've developed a right to use and want to continue using.

How Adverse Possession Laws Work

Adverse possession is a legal concept that allows a trespasser—sometimes a stranger but more often a neighbor—to gain legal title over land that was once owned by someone else. The concept developed in early Britain, and has persisted as a way to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for a long time, such that forcing that person to depart would create hardship.

Because adverse possession law is developed by state courts, it differs slightly from one state to the next. Alaska courts don’t make adverse possession easy. They repeatedly emphasize that they assume that a person who occupies the land of another does so with the latter’s consent. In other words, it’s up to the trespasser to prove a claim of adverse possession, by clear and convincing evidence. The legal holder of title is the presumed owner until the adverse possessor can meet that burden of proof.

Alaska’s Legal Requirements for Adverse Possession

Like in most states, adverse possession in Alaska can be proven based on the character of a trespasser’s possession and the length of time he or she possesses the land. While some aspects of adverse possession are spelled out in legislation (specifically Alaska Code Ann. § 09.10.030), courts dictate the elements that a trespasser must establish.

A trespasser’s possession must be 1) hostile (against the right of the true owner and without permission); 2) actual (exercising control over the property); 3) exclusive (within the possession of the trespasser alone); 4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and 5) continuous for the statutory period (which is ten years in Alaska, under Alaska Code Ann. § 09.10.030).

For example, imagine that Brian and Danielle live next to one another in Juneau. There is no dividing fence or apparent boundary between their yards. Brian builds a woodshop that is actually on Danielle side of the property, covering about 15 square feet of earth. Danielle doesn’t say anything. Brian uses the woodshop as if it were on his own land. He does this for ten years. Under the rubric described above, Brian can probably establish that he “owns” the land on which he was encroaching. From Danielle's perspective, she could have stopped Brian by demanding over those ten years that he remove the offending structure, or sign a rental agreement, which would make the use an agreed-upon one, rather than a “hostile” one. But Alaska courts will not allow her to suddenly eject Brian after sitting on her rights for a decade or more.

“Tacking On” Another's Adverse Possession Claim to Meet Limitations Period

An Alaska trespasser does not necessarily need to occupy the land for that entire period. Sometimes, courts will allow “tacking on” of a previous trespasser’s occupancy of the land if there is a chain between them. In our example above, imagine that Brian sold “his” woodshop property to Barry after six years. If Barry inhabited the woodshop under all of the other adverse possession requirements for an additional four years, he would be able to claim title to the land against Danielle. In other words, courts would allow Barry to "add" his four years of possession to Brian's prior six.

Filing an Action to Quiet Title

What if you’re a property owner and notice that a trespasser is on your land? Or you notice that your neighbor seems to be encroaching on part of your yard? Your first step, of course, is to speak with that person and remind him or her of your property boundaries.

But if the encroacher refuses to move, you might need to file an action to quiet title. This is essentially a judicial declaration that you own the land, and your neighbor or other encroacher does not. This sort of court order can come in handy, particularly if you’re looking to sell your property and need to give assurance to a prospective buyer about your boundaries.

Public Use Land Cannot Be Taken Through Adverse Possession

In Alaska, one may not use the adverse possession doctrine to acquire title to property owned by the federal or state government. In other words, if you live alongside a state park in Juneau, you cannot seek to expand your yard by “possessing” part of the parkland for ten years.

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