Who Can Claim Property Based on Adverse Possession in New Mexico?

How a trespasser -- even a nice neighbor who didn't know where the property boundary was -- can end up gaining ownership to a New Mexico landowner's property.

As a general rule in New Mexico, one’s ownership of land must be in writing to be recognized and enforceable. You need a deed or conveyance indicating that you are the land's true owner. But there is an important exception to this rule, known as adverse possession. Whether you’re a property owner in the Albuquerque suburbs or a rancher outside Santa Fe, 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 a legal concept known as "adverse possession." And, while it might be less likely, an unknown trespasser can also squat on your New Mexico 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 New Mexico’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.

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 become 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 latter person leave would create hardship.

Adverse possession in New Mexico is controlled by statute, as well as by the courts. Importantly, the burden of proof to establish a claim of adverse possession is on the trespasser. The legal holder of title is the presumed owner until the adverse possessor can meet that burden and prove to a judge that he or she should be named the true legal owner of the land.

New Mexico’s Legal Requirements for Adverse Possession

There is no single statute in New Mexico that spells out the elements that a trespasser must establish in order to prove adverse possession. Rather, the courts have set out a variety of such factors over many decades. As in most states, adverse possession in New Mexico is established from the nature of a trespasser’s possession and the length of time he or she has possessed 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 New Mexico, pursuant to  N.M. Stat. Ann. § 37-1-22).

Example

Imagine that Joey and Monica live next to one another in Carlsbad, New Mexico. There is no dividing fence or boundary between their yards. Joey builds an elaborate wooden playhouse for his kids that is actually on Monica’s side of the property, covering about 12 square feet of earth. Monica doesn’t say anything. Joey hangs out and his kids play on the structure as if it were theirs, on Monica’s own land. They do this for ten years. Under the rubric described above, Joey can probably establish that he “owns” the land on which he and his children were encroaching. Monica could have stopped Joey by asking, over those ten years, that he remove the playhouse, or sign a  rental agreement. But New Mexico courts won’t let her suddenly eject Joey after failing to exercise her rights for more than a decade.

Trespasser’s Intent Is Irrelevant in New Mexico

The doctrine of adverse possession protects one 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 New Mexico, 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 Joey built the playhouse  knowing  that he was on Monica's land, or whether he built it mistakenly thinking he was doing so on his own land. His intent has no bearing on his eventual claim for title under adverse possession.

No Claims Against Government Land

It is the general rule that title by adverse possession cannot be acquired as to public New Mexico property. Land held by New Mexico’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 Carlsbad Caverns National Park, you won’t be able to expand your backyard merely by building a shed there and waiting ten years. New Mexico will still “own” it.

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