As a homeowner and Tar Heel, your property is likely your most valued asset. Unlike a car or other pieces of personal property, your North Carolina home is an investment, hopefully gaining in value with each passing year after purchase. Given that, protecting your investment is crucial. But a legal doctrine known as "adverse possession" can allow either your neighbors or trespassers to acquire bits and pieces of your land if you fail to object within a certain period of time.
To make sure that all of your 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 North Carolina’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 Britain. It has been kept alive in order 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 him or her leave would seem unfair, or create hardship.
Adverse possession in North Carolina is regulated by statute (laws passed by the legislature), but also by the state courts. Of course, there are some hurdles to clear before someone can claim a piece of your North Carolina 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 give him or her 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 North Carolina 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 North Carolina 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 usually 20 years in North Carolina, under N.C. Gen. Stat. § 1-40).
In addition to these factors, North Carolina courts have also repeated certain pieces of evidence that are likely to weigh in favor of granting a trespasser adverse possession. These include:
As you can see, these mainly address situations where there was confusion over ownership rather than an outright attempt to take over another person's land.
These concepts may be easier to understand with a hypothetical. Imagine that Frank and Ginger live next to one another in a suburb outside of Raleigh. Without a wall between their properties, Frank begins to put lawn furniture on what is technically Ginger’s land. Eventually, Frank builds an entire outdoor kitchen there, complete with pavers, heat lamps and fire pit. Ginger never says anything. The years pass—20 years, in fact. Under North Carolina’s adverse possession framework, Frank will likely be successful in establishing an ownership claim to that portion of Ginger’s property. Note that he won’t be able to take over all of Ginger’s lawn—only the portion upon which he constructed the kitchen area and which he actively used for those two decades. A North Carolina judge would be hesitant to suddenly eject Frank after all that time.
Generally, N.C. Gen. Stat. § 1-40 dictates that the possessor must have exclusive possession for 20 years in order to establish adverse possession. However, there is an exception to this. Under N.C. Gen. Stat. § 1-38, North Carolina will grant ownership where a trespasser has occupied land under “color of title” for seven years.
Color of title is just a legal way of saying that an individual has some sort of legal documentation to support his occupation—for example, a faulty deed, or tax payment records. These types of documents tend to support an inference that the trespasser acted in good faith, and should be awarded possession.
What should you do if you spot a trespasser or a neighbor encroaching on your North Carolina 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 North Carolina 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 regarding where the boundaries to your land lie, and who owns what.
Any property that is held by North Carolina’s state and local government entities is typically immune from adverse possession actions. So, if you live next to an unused state park in Raleigh, you won’t be able to “annex” a larger yard by building a shed and waiting two decades. North Carolina’s government always has first priority when it comes to ownership.