Who Can Claim Property Based on Adverse Possession in Montana?

What property owners in Montana should know about who can lay claim to another's land based on extended usage.

Many types of disputes can impact your relationship with your neighbors, but nothing represents a higher-stakes dispute than one over title to your land. Whether you own a charming brownstone in Billings or an undeveloped parcel in Helena, your home is probably your most valuable asset. You should do everything in your power to protect it.

As a property owner in Montana, 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 probably 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 Montana’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; especially if you learn that you’ve been paying property taxes on that land, despite the fact that it’s not included in your formal deed.

How Adverse Possession Laws Work

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 Montana 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, the trespasser must do all the work of proving that the judge should give him or her ownership over the land.

Montana Requirements for Adverse Possession

No single statute in Montana spells out the elements that a trespasser must establish in order to prove adverse possession. The courts, however, have filled this gap by establishing a variety of such factors, over many decades of issuing decisions in actual cases.

As in most states, adverse possession in Montana 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 the occupancy), and
  5. continuous for the statutory period (which is five years in Montana, under Mont. Code Ann. § 70-19-411), and
  6. be accompanied by payment of taxes for the full five years.

Note that the statutory requirement of payment of property taxes by the trespasser is somewhat unique to Montana. In many states, a trespasser can gain adverse possession even if they’ve never paid a dime of tax money over a decade or more—but not in Montana.

For example, imagine that Mary and Samuel live next to one another in Billings. No dividing fence or boundary exists between their yards. Samuel builds a shed that is actually on Mary’s side of the property, covering about ten square feet of earth. Mary doesn’t say anything. Samuel uses the shed as if it were on his own land. He does this for five years, and pays property taxes on the land. Under the rubric described above, Samuel can probably establish that he “owns” the land on which he was encroaching. Mary could have stopped him by asking, over those ten years, that he remove his shed, or sign a rental agreement. But Montana courts won’t let her suddenly eject Samuel after having sat on her rights for five years.

Trespasser’s Intent Irrelevant in Montana

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 Montana, 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 Samuel 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.

Protect Your Montana Property With an Action to Quiet Title

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 Montana district 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 about the extent of your ownership. ("Who's that guy using that shed there?" might be one of the first questions from a prospective buyer's mouth.)

No Claims Against Montana Government Land

Land held by Montana’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 Yellowstone, you won’t be able to expand your backyard by planting a garden and waiting five years or more. Montana will retain legal ownership.

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