Whether you own a brownstone in Chicago or a large parcel of land in Urbana, your home is probably your most valuable asset. You should do everything in your power to protect it and the land that surrounds it. But that means keeping a sharp eye on what your neighbors are up to, even if your neighbors are perfectly friendly and don't intend any harm. While it may seem surprising, neighbors whose land use crosses over onto your side of the property line might be able to gain legal title to portions of your land under a legal concept called adverse possession. And while it might be less likely, an unknown trespasser could, in theory, also squat on your land and develop a claim to legal ownership.
To make sure that your land remains yours and that a neighbor can’t claim a portion of it, it's wise to learn about the Illinois rules on adverse possession. There may even come a time when you yourself need to assert an adverse possession claim, over land that you feel you have, over time, developed a right to use and that you want to keep on using.
Adverse possession is a legal concept that allows a trespasser – sometimes a stranger but more often a neighbor – to gain legal title over land, replacing its original owner. The concept comes to us from early Britain. Its current purpose is to bring about a fair result in situations where the original owner has neglected or forgotten about a piece of land, and another person has begun using or caring for it -- in fact, done so for so long that to make that person leave would create unjust hardship.
Adverse possession in Illinois is controlled by statute as well as by the courts. And, not surprisingly, someone claiming adverse possession is going to have to prove the matter in court. The law doesn't make it easy -- it places the burden of proof on the trespasser to establish ownership through adverse possession. The legal title holder has the presumption of ownership until the adverse possessor can meet that burden. In other words, it is the trespasser’s job to prove to an Illinois judge that the judge should grant him or her ownership of the land.
There is no single statute in Illinois that spells out the elements that a trespasser must establish in order to prove adverse possession. Rather, the courts have articulated a variety of such factors over many decades of judicial decisions. As in most states, adverse possession in Illinois depends on the nature of a trespasser’s possession and the length of time he or she possesses the land. 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 (in 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 (20 years in Illinois under 735 Ill. Comp. Stat. Ann. 5/13-101).
For example, imagine that Lenny and Lucy live next to one another in Springfield. There is no dividing fence or boundary between their yards. Lenny builds a painting studio that is actually on Lucy’s side of the property, covering about 30 square feet of earth. Lenny doesn’t say anything. Lenny uses the studio as if it were on his own land. He does this for 20 years. Under the rubric described above, Lenny can probably establish that he “owns” the land on which he was encroaching. Lucy could have stopped Lenny by asking, over those 20 years, that he remove his studio, or at least sign a rental agreement allowing him to use it with her consent. But Illinois courts won’t let her suddenly eject Lenny after she sat on her rights for two decades.
In Illinois, unlikely in many states, there’s a second path to acquiring title to land by adverse possession. Under 735 Ill. Comp. Stat. Ann. 5/13-109, a court can award title to a trespasser who has a deed indicating ownership of the land (even if the deed is defective or mistaken) and that trespasser has paid proper property taxes on the land for seven consecutive years.
The doctrine of adverse possession protects one 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 other words, in Illinois, 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 20 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 Lenny built the shed knowing that he was on Lucy’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 person to stop. If that doesn’t work, however, you may need to consult a lawyer and bring an action to quiet title. This is a legal method for determining title to land. You’d be asking an Illinois state court judge to issue an order declaring that you, not the trespasser, are the true owner of the land. This order is particularly helpful if you are seeking to sell your property, and need to show potential buyers that the land they're hoping to buy really covers the square footage they're paying for.
Land held by Illinois state and municipal government entities are generally immune from adverse possession actions. So, if you live next to an unused state park in Peoria, you won’t be able to expand your backyard merely by mowing the lawn or building a shed and waiting 20 years. The state of Illinois will still “own” that piece of land.