Whether you own a small home outside of Dickinson or a large townhouse in Bismarck, property owners should be aware of the doctrine of adverse possession. If you have neighbors whose land borders yours, and who start to cross the property line and use portions of your land, those neighbors might be able to gain legal title to those portions under a legal doctrine known as “adverse possession.”
While it might be less likely to occur in a crowded city, it’s also worth realizing that a trespasser can essentially squat on your land and eventually claim legal ownership.
There may, in addition, be situations in which 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.
To make sure that your existing land remains yours—that is, that a neighbor or trespasser can’t lay claim to a portion of your land after having encroached on it for a while—it’s worth familiarizing yourself with North Dakota’s laws on adverse possession.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger but more often a neighbor—to gain legal title over land that was once owned by someone else. The concept developed in early Britain, and has persisted as a way 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 a long time, such that forcing that person to depart would create hardship.
Because adverse possession law is developed by state courts, it differs slightly from one state to the next. North Dakota courts don’t make adverse possession easy. They repeatedly emphasize that they assume that a person who occupies the land of another does so with the latter’s consent. In other words, it’s up to the trespasser to prove a claim of adverse possession, by clear and convincing evidence. The legal holder of title is the presumed owner until the adverse possessor can meet that burden of proof.
Like in most states, adverse possession in North Dakota can be proven based on the character of a trespasser’s possession and the length of time he or she possesses the land. While some aspects of adverse possession are spelled out in legislation courts dictate the elements that a trespasser must establish.
A trespasser’s possession must be:
For example, imagine that Harry and Rita live next to one another in Bismarck. There is no dividing fence or apparent boundary between their yards. Harry builds a toolshed that is actually on Rita’s side of the property, covering about ten square feet of earth. Rita doesn’t say anything. Harry uses the toolshed as if it were on his own land. He does this for 20 years. Under the rubric described above, Harry can probably establish that he “owns” the land on which he was encroaching. Remember, Rita could have stopped Harry by demanding over those 20 years that he remove his toolshed, or sign a rental agreement, which would make the use an agreed-upon one, rather than a “hostile” one. But North Dakota courts will not allow her to suddenly eject Harry after sitting on her rights for two decades.
At 20 years, North Dakota has a particularly long time-period requirement for continuous occupancy of the land by the would-be adverse possessor. (In some states, the number is as low as five years). Having said that, a trespasser does not necessarily need to occupy the land for that entire period. There are two potential ways to shorten that time period.
First, courts will allow “taking on” of a previous trespasser’s occupancy of the land if there is a chain between them. In our example above, imagine that Harry sold “his” toolshed property to someone named Ben after 13 years. If Ben inhabited the shed under all of the other adverse possession requirements for an additional seven years, he would be able to claim title to the land against Rita.
Second, under N.D. Cent. Code Ann. § 47-06-03, an adverse possessor can gain legal title after only ten years if he or she can show that he or she occupied the land under “color of title.” Color of title generally means that the trespasser has some sort of legal documentation to establish a claim of ownership; for example, tax bills showing that he or she was billed for “ownership” of the land, or a faulty deed showing a legitimate belief upon which to base the occupation.
What if you’re a property owner and notice that a trespasser is on your land? Or you notice that your neighbor seems to be encroaching on part of your yard? Your first step, of course, is to speak with that person and remind the person of your property boundaries.
But if the encroacher refuses to move, you might need to file an action to quiet title. This is essentially a judicial declaration saying that you own the land and your neighbor or other encroacher does not. This sort of court order can come in handy, particularly if you’re looking to sell your property and need to give assurance to a prospective buyer about your boundaries and ownership rights.
In North Dakota, one may not use the adverse possession doctrine to acquire title to property owned by the federal or state government. In other words, if you live next to a local school in a suburb of Fargo, you cannot seek to expand your yard by “possessing” the school’s parking lot for 20 years, even if the school itself does not use that lot.