If you’re a homeowner in the Grand Canyon State, you likely have two or three neighbors surrounding your property. You can get into all sorts of disputes with your Arizona neighbors. But perhaps no dispute is as troubling as neighbors’ potential claims against your property through adverse possession.
Your property is likely your most valuable possession. Adverse possession—a legal concept dating back to the Middle Ages—allows a neighbor or unknown squatter to gain legal title to part of your property.
To make sure that your land remains yours and that a neighbor can’t claim a portion of it, you should familiarize yourself with Arizona’s laws on adverse possession, which are slightly different from other states. There may also 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.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger, but more often a neighbor—to gain legal title over the land of the property owner.
The concept developed in early modern Europe. Old though its roots might be, the law’s continued utility is 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 so long that to make the trespasser leave would actually create hardship.
Adverse possession in Arizona is controlled partly by statute (laws passed by the state legislature), but also by the state courts. Importantly, the burden of proof to establish a claim of adverse possession is on the neighbor or trespasser. The legal holder of title has the presumption of ownership until the adverse possessor can meet that burden. In other words, it is entirely the trespasser’s job to prove that the judge should give him or her ownership over the land. Just making the claim and hoping the other side won't do a good enough job defending against it is not likely to win the day.
Arizona’s courts will consider a variety of factors in an adverse possession proceeding.
As in most states, adverse possession in Arizona is established from the nature of a trespasser’s possession and the length of time the person possesses the land. A trespasser’s possession must be: (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive (in the possession of the trespasser alone); (iv) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and continuous for the period set by state statute (which is in most cases ten years in Arizona, under Ariz. Rev. Stat. § § 12-522 et seq., with some important exceptions).
To illustrate these concepts, let's take a hypothetical. Imagine that John and Ellen live next to one another in Phoenix. There is no dividing fence or boundary between their yards. John builds a gazebo that is actually on Ellen’s side of the property, covering about 14 square feet of earth. Ellen doesn’t say anything. Ben uses the gazebo as if it were on his own land. He does this for ten years. Under the rubric described above, John can probably establish that he “owns” the land on which he was encroaching. Ellen could have stopped John by asking, over those ten years, that he remove his structure, or insist that he sign a rental agreement. But Arizona courts won’t let Ellen kick out John after she ignored her rights for a full decade.
An adverse possession claimant is typically required to have continuous possession of the subject property for a full ten-year period. However, Ariz. Rev. Stat. § § 12-523 allows “trespassers” who have actually been paying property taxes on the subject land to claim adverse possession rights after only three years. This is important to keep in mind as you review (or notice that you haven't received!) your annual tax assessments.
In some states, a crucial legal determination is whether the trespasser knew that he or she was trespassing. In Arizona, this does not matter. The doctrine of adverse possession protects someone who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of others for the specific purpose of acquiring title.
In short, in Arizona, there is no requirement that the entry and continued possession of the property be done with knowing or intentional hostility.
Rather, any entry and possession for the required ten years that is exclusive, continuous, hostile, actual, and open—even if under a mistaken claim of title—is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether John built the gazebo knowing that he was on Ellen’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
What should you do if you spot a trespasser or a neighbor encroaching on your land? Chances are, it’s an innocent mistake on the person's part. Given that, your first step should be to nicely ask the trespasser to move and to remove any structures or property on your land. More often than not, the person will comply.
If the trespasser does not comply, you may be forced to consult a lawyer and bring an action to quiet title—a legal method for determining who holds title to land. In an action to quiet title, you’re asking an Arizona state court judge to issue an order declaring that you, and not the trespasser, are the true owner of the land.
A quiet title order is particularly helpful if you are intending to sell your property, and will need to reassure potential buyers about its boundaries and rightful ownership.
Land held by Arizona state and municipal government entities are generally immune from adverse possession actions. In other words, title to public lands generally can’t be acquired by adverse possession as against the state of Arizona. Therefore, if you live next to an empty field in Scottsdale, you won’t be able to expand your backyard merely by mowing the lawn and waiting ten years. The state of Arizona will still “own” that land.