For most Americans and most Kentuckians, your home is your single most valuable asset. Given that, homeowners should be aware of the dangers of trespassers establishing legal claims to their property based on the legal doctrine of adverse possession.
Adverse possession essentially allows a trespasser onto a piece of land to gain ownership of that land if the true owner fails to object within a certain period of time.
To make sure that all of your Kentucky land remains yours, it makes sense to keep an eye on your property lines. Moreover, you yourself may eventually want to assert a claim for adverse possession against another individual’s land. Either way, you’ll need to learn about Kentucky’s adverse possession laws.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger, but more often a neighbor—to gain legal title over someone else's land. The concept first developed in early modern Europe.
Kentucky courts continue to enforce 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 him or her leave would seem unfair, or create hardship. In other words, if a trespasser spends enough time caring for a piece of property that the true owner has neglected, and the true owner makes no objection, a court might award “ownership” to the trespasser.
Of course, there are some hurdles to clear before someone can claim a piece of your Kentucky land using this theory. One major hurdle is that the burden of proof to establish a claim of adverse possession is on the trespasser. In other words, if you hold legal title to a piece of land, you are its presumed owner until and unless the adverse possessor can come up with enough compelling evidence and arguments to convince a judge to grant ownership over all or a portion of it.
Adverse possession should not be confused with having an easement to use another person's property—for example, when a neighbor has an easement to use your driveway to access his or her property. Easements involve shared rights with others in pieces of property, whereas adverse possession results in a shift in title, and the corresponding right to exclude others from the property. Read more about easements.
There is no single statute in Kentucky that dictates the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors over many decades of issuing decisions in individual cases.
As in most states, adverse possession in Kentucky 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 (v) continuous for the statutory period (which is 15 years in Kentucky, under Ken. R. S. 413.010, et seq.).
These concepts are easier to understand in context. Imagine that Eric and Brian live next to one another in a suburb outside of Lexington, Kentucky. Without a wall between their properties, Eric plants trees on what is technically Brian’s land. Eventually, Eric builds an entire porch there. Brian never says anything. The years pass—15 years, in fact.
Under Kentucky’s adverse possession framework, Eric will likely be successful in establishing an ownership claim to that portion of Brian’s property. Note that he won’t be able to take over allof Brian’s lawn—only the portion upon which he constructed the patio and which he actively used for those two decades. Kentucky courts would be reluctant to suddenly eject Eric and his patio after so much time has passed.
Normally, trespassers must occupy the subject land for 15 years under Kentucky law before they can make a claim of ownership. However, there is an exception: If a trespasser can establish that he occupied the land “under color of title” – meaning proof that he is actually the true owner, then the limitation period is only seven years, under Ken. R. S. 413.060.
How can one establish “color of title”? Sometimes property deeds or records in the county clerk’s office will be ambiguous as to boundaries, implying that the trespasser indeed was the true owner. This would be enough to establish the shorter limitations period.
In most American states, it does not matter whether the trespasser knows that he or she is trespassing. A trespasser could gain adverse possession even after mistakenly believing the land to be his or her own.
This is not so in Kentucky. In Kentucky, it’s both the trespasser's intent and the possession that matter. The trespasser must at least allege having known that the land belonged to someone else, but occupied it for 15 years anyway.
What should you do if you spot a trespasser or a neighbor encroaching on your Kentucky land? Your first move, of course, is to speak with the person and ask that he or she remove all structures from, and refrain from entering onto, your property. If it’s an innocent mistake, the person is likely to comply.
If the trespass continues, you may want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land.
In an action to quiet title, you’re asking a Kentucky state court judge to issue an order declaring that you, and not the trespasser, are the true owner (and title holder) of the land. This order is particularly helpful if you are seeking to sell your property, and need to reassure potential buyers.
Any property that is held by Kentucky’s state and local government entities is typically immune from adverse possession actions. So, if you live next to an unused state park in Lexington, you won’t be able to “annex” a larger yard by building a shed and waiting two decades. Kentucky’s government always has first priority when it comes to ownership.