Who Can Claim Property Based on Adverse Possession in North Carolina?

North Carolina law allows people who trespass and encroach on another's land for a minimum 20-year time period to develop an ownership claim to the property.

By , Attorney (Benjamin N. Cardozo School of Law)

Unlike a car or other piece of personal property, your North Carolina home is an investment, hopefully gaining in value with each passing year. Protecting your investment is crucial. But a legal doctrine known as "adverse possession" can allow either 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 might 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.

Rationale Behind 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 is an old one, which has stuck around because it can 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; in fact, doing so for so long that to make the "trespasser" 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 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 grant them 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 their 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.

North Carolina's Legal Requirements for Adverse Possession

The North Carolina legislature and the courts have, together, established that adverse possession in North Carolina is based on the nature of a trespasser's possession and the length of time they possess the land. A trespasser's possession must be

  1. hostile (against the right of the true owner and without permission; though courts in North Carolina tend to presume permission was given)
  2. actual (exercising control over the property)
  3. exclusive (in the possession of the trespasser alone)
  4. open and visible (using the property as the real owner would, without hiding the occupancy, including with marked boundary lines), and
  5. continuous for the statutory period (which is usually 20 years in North Carolina, under N.C. Gen. Stat. § 1-40, but 7 years if it was under "color of title," as discussed below).

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 a thing. 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 eject Frank after all that time.

North Carolina Will Grant Adverse Possession After Seven Years Under Color of Title

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 someone has some sort of legal documentation to support their 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, together with marked boundary lines and the payment of taxes on the property.

Cutting Off an Adverse Possession Claim With Action to Quiet Title

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 they remove all structures from, and refrain from entering onto, your property. If it's an innocent mistake, they're likely to comply.

If the trespass continues, you might want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land. You'd be 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.

No Adverse Possession Claims Possible Against Government Land

Any property that is held by North Carolina's state and local government entities is typically immune from adverse possession actions. (N.C. Gen. Stat. § 1-45.) 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.

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