Whether you own a charming brownstone in the French Quarter or a large parcel of land in Baton Rouge, your home is probably your most valuable asset. You should do everything in your power to protect it.
As a property owner in Louisiana, you likely have two or three neighbors whose land borders yours. While it may seem surprising, those neighbors might be able to gain legal title to pieces of your property under a legal concept called adverse possession. And while it might be 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 lay claim to a portion of it, it's wise to familiarize yourself with Louisiana’s rules on adverse possession. You yourself may also someday 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 a property owner. The concept developed in early Britain. More recently, though, the law’s function has been 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 that person leave would create hardship.
Adverse possession in Louisiana is controlled by state statute, 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 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 give him or her ownership over the land.
There is no single statute in Louisiana 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 Louisiana 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:
For example, imagine that Mary and Marty live next to one another in New Orleans. No dividing fence or boundary exists between their yards. Marty builds a shed that is actually on Mary’s side of the property, covering about ten square feet of earth. Marty doesn’t say anything. Marty uses the shed as if it were on his own land. He does this for ten years. Under the rubric described above, Marty can probably establish that he “owns” the land on which he was encroaching. Mary could have stopped Marty by asking, over those ten years, that he remove his shed, or sign a rental agreement. But Louisiana courts won’t let her suddenly eject Marty after having sat on her rights for more than a decade.
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 other words, in Louisiana, 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 Marty built the shed knowing that he was on Mary’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 their part. Given that, your first step should be to nicely ask the person to move. More often than not, the person will comply.
If that doesn’t work, you may be forced to consult a lawyer and bring an action to quiet title – a legal method for determining who owns a piece of land. In an action to quiet title, you’re asking a Louisiana state court judge to issue an order declaring that you, and 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 reassure potential buyers.
Land held by Louisiana’s 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. So, if you live next to an unused state park in Baton Rouge, you won’t be able to expand your backyard by planting a garden and waiting a decade. Louisiana will retain legal ownership.