After some difficult years following the Great Recession of 2008, the real estate market is beginning to turn around in the Land of 10,000 Lakes. If you’re a homeowner in Minnesota, your property is likely your most valuable possession, and home values are increasing.
Adverse possession—a legal concept dating back to the Middle Ages—poses a potential threat to your land. How? 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. And while less likely, the law also allows an unknown trespasser—not a neighbor whom you know—to squat on your land and develop the same type of claim to 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 Minnesota’s rules on adverse possession. 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 Britain. Archaic 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 Minnesota 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 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.
There is no single statute in Minnesota that articulates 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 Minnesota 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 15 years in Minnesota in most cases, underMinn. Stat. Ann. § 541.02).
Let's take an example. Imagine that George and Judy live next to one another in Minneapolis. There is no dividing fence or boundary between their yards. George builds a painting studio that is actually on Judy’s side of the property, covering about 12 square feet of earth. Judy doesn’t say anything. George uses the studio as if it were on his own land. He does this for 15 years. Under the rubric described above, George can likely establish that he “owns” the land on which he was encroaching. Judy could have stopped George by asking, over those fifteen years, that he remove his studio, or insist that he sign a rental agreement. But Minnesota courts won’t let Judy kick out George after she ignored her rights for nearly two decades.
In some states, a crucial legal determination is whether the trespasser knew that he or she was trespassing. In Minnesota, 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 another for the specific purpose of acquiring title.
In short, in Minnesota, 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 15 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 George built the studio knowing that he was on Judy’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 a Minnesota state court (known as district 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 Minnesota state and municipal government entities are generally immune from adverse possession actions. Ditto for land held by the federal government. In other words, title to public lands generally can’t be acquired by adverse possession. Therefore, if you live next to an empty field in St. Cloud, you won’t be able to expand your backyard merely by mowing the lawn, putting out and sitting in some lawn furniture, and waiting 15 years. The state of Minnesota will still “own” that land.