As a general rule in Indiana, one’s ownership of land must be in writing to be enforceable. You need a deed or conveyance indicating that you are the true owner. But there is an important exception to this rule, known as adverse possession.
Whether you’re a property owner in an Indianapolis suburb or on a farm in Muncie, you likely have several neighbors bordering your land. While it may seem surprising, those neighbors might be able to gain legal title to pieces of your property through adverse possession. And while less likely, an unknown trespasser could also squat on your land and develop the same type of claim to legal ownership.
To make sure that your land remains yours and that a neighbor can’t claim a portion of it, you should familiarize yourself with Indiana’s adverse possession laws. 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 land that originally belonged to someone else (and in that original owner's mind, perhaps still does!). While the concept developed in early Britain, it has stayed on the books in order to achieve a fair result when one owner has neglected or forgotten about a piece of property while another has been using or caring for it for so long that to make that trespasser leave would create hardship.
Adverse possession in Indiana is controlled by statute (state law created by legislators), but also by the courts. Importantly, the burden of proof to establish a claim of adverse possession is on the trespasser. The legal holder of title to land has the presumption of ownership until the adverse possessor can meet that burden. In other words, it is the trespasser’s job to prove that the judge should transfer title and ownership over the land to him or her.
There is no single statute in Indiana that spells out the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors over many decades. As in most states, adverse possession in Indiana is established from 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 (ten years in Indiana pursuant to Ind. Code Ann. § 32-23-1-1).
Every state has a slightly different statutory period for which a trespasser must occupy the land in order to claim title. Under Ind. Code Ann. § 32-23-1-1, the trespasser can bring a claim of adverse possession after ten years.
Example: Chandler and Monica are homeowners who live next to one another in Bloomington. Their back yards are one vast, connected expanse of grass, with no dividing fence or boundary between them. Chandler builds a shed that is actually on Monica’s side of the yard, covering about ten square feet of earth. Monica doesn’t say a word about it. Chander uses the shed as if it were on his own land. He does this for 11 years. Under the rubric described above, Chandler can probably establish that he “owns” the land on which he was encroaching. Monica could have stopped Chandler by asking, over those 11 years, that he remove his shed, or that he sign a rental agreement indicating the nature of his use and thereby acknowledging Monica's ownership. But Indiana courts won’t let Monica suddenly eject Chandler after failing to exercise her rights for more than a decade.
The doctrine of adverse possession protects one who has honestly entered and held possession of property in the belief that it was his or her own, as well as one who knowingly appropriates someone else's land for the specific purpose of acquiring title. In other words, in Indiana, 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 Chandler built the shed knowing that he was on Monica’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 the doctrine of adverse possession.
It is the general rule that title by adverse possession cannot be acquired as to public Indiana property. Land held by Indiana’s state and municipal government entities are generally immune from adverse possession actions. That means that title to public lands usually can’t be acquired by adverse possession. So, if you live next to an unused state park outside of Bloomington, you won’t be able to expand your backyard merely by mowing the lawn or building a shed and waiting ten years. The state of Indiana will still “own” it.