Who Can Claim Property Based on Adverse Possession in South Dakota?

South Dakota statutory law allows people who trespass and encroach on others' land for a minimum time period to develop an ownership claim to the property.

If you are a homeowner in South Dakota, your home is undoubtedly your single most valuable asset. Given that, you have good reason to make yourself aware of the dangers of trespassers establishing legal claims to your property based on the legal doctrine of adverse possession.

Many types of disputes might arise against your South Dakota neighbor, but adverse possession is a particularly dangerous one. Adverse possession, a legal concept that exists in all 50 states, essentially allows a trespasser onto a piece of land to gain ownership of that land (or a portion of it) if the true owner fails to object within a certain period of time. Although the specific requirements vary from one state to the next, homeowners need to be aware that their property could be in jeopardy. Sometimes, this trespasser is someone the homeowner has never met before. Other times, this trespasser could be a next-door neighbor.

To make sure that all of your South Dakota land remains yours, it makes sense to keep an eye on your property lines and any encroachments. 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 South Dakota’s adverse possession laws.

Legal Theory Behind 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 someone else's land. The concept first developed in early modern Europe.

South Dakota’s courts continue to enforce this doctrine when one owner has neglected or forgotten about a piece of land while another person has been using or caring for it for so long that to make him or her leave would seem unfair, or create hardship. In other words, if a trespasser spends enough time caring for a piece of property, which the true owner has perhaps stopped paying attention to, and the true owner makes no objection, a court might award ownership to the trespasser.

Of course, there are hurdles to clear before someone can claim a piece of your South Dakota 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 ownership over all or a portion of it.

Adverse possession should not be confused with having an easement to use another person's property in South Dakota—for example, when a neighbor has an easement to use your driveway to access his or her house. 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.)

South Dakota’s Requirements for Adverse Possession

While most states largely leave adverse possession determinations to the courts, South Dakota is fairly unique in that it has a specific statute detailing its various requirements. S.D. Codified Laws Ann. § 15-3 et seq. lays out these elements. As in most states, however, adverse possession in South Dakota 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 generally 20 years in South Dakota, under S.D. Codified Laws Ann. § 15-3-1).

Imagine that Daphne and Bob live next to one another in a suburb outside of Sioux Falls. Without a wall between their properties, Daphne plants fruit trees and vegetables on what is technically Bob’s land. Eventually, Daphne builds an entire gardening shed there. Bob never says anything. The years pass—20 years, in fact.

Under South Dakota’s adverse possession framework, Daphne will likely be successful in establishing an ownership claim to a portion of Bob’s property. Note that she won’t be able to take over all of Bob’s land—only the portion upon which she constructed the gardening shed and which she actively used for those 20 years. South Dakota’s judges would be reluctant to eject Daphne from the land she's using after so much time has passed.

Adverse Possession by Payment of South Dakota Property Taxes

In South Dakota, there’s a second, shorter path to acquiring title to land by adverse possession. Under S.D. Codified Laws Ann. § 15-3-15, a court can award title to a trespasser who has a deed indicating ownership of the land (even if the deed is defective or mistaken) and that trespasser has paid property taxes on the land for ten consecutive years.

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 South Dakota 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 South Dakota Circuit 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 about the location of its boundary lines.

No Adverse Possession Claims Possible Against Government Land

Any property that is held by South Dakota’s state and local government entities is ordinarily immune from adverse possession actions. So, if you live next to an unused state park in Sioux Falls, you won’t be able to “annex” a larger yard by building a structure there and waiting 20 years. South Dakota’s government will still “own” that land, regardless of your occupation.

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