Who Can Claim Property Based on Adverse Possession in Virginia?

Virginia, one of the original colonies, has been home to Americans for hundreds of years. If it's your home, too, you'll want to make sure to protect your property interests there. In particular, 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's less likely to occur in a crowded city, realize also that a trespasser can also essentially squat on your land and eventually claim legal ownership.

There might additionally 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 it after having encroached for a while—it's worth familiarizing yourself with Virginia's laws on adverse possession.

What's the Reasoning Behind Adverse Possession Laws?

Adverse possession is a legal doctrine that developed in early Britain. It's meant 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 largely developed or interpreted by state courts, it differs slightly from one state to the next. Virginia 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.

Virginia's Legal Requirements for Adverse Possession

Like in most states, adverse possession in Virginia can be proven based on the character of a trespasser's possession and the length of time they possess the land. While some aspects of adverse possession are spelled out in legislation (specifically Va. Code Ann. § 8.01-236), courts dictate the elements that a trespasser must establish.

A Virginia trespasser's possession must be:

• hostile (against the right of the true owner and without permission; in fact, an owner who makes a trespassing claim can defeat the adverse possession claim, under Va. Code Ann § 8.01.124)
• actual (exercising control over the property)
• exclusive (within the possession of the trespasser alone)
• open and notorious (using the property as the real owner would, without hiding one's occupancy from others), and
• continuous for the statutory period of 15 years.

Imagine that Dale and Elaine live next to one another in Richmond. There is no dividing fence or apparent boundary between their yards. Dale builds a meditation hut that is actually on Elaine's side of the property line, covering about ten square feet of earth. Elaine doesn't say anything. Dale uses the hut as if it were on his own land. He does this for 15 years. Under the rubric described above, Dale can probably establish that he "owns" the land on which he was encroaching. From Elaine's perspective, she could have stopped Dale by demanding, over those 15 years, that he remove his hut or sign a rental agreement, which would make the use an agreed-upon one, rather than a "hostile" one. But Virginia's courts might not allow her to suddenly eject Dale after sitting on her rights for so many years.

"Tacking On" Another's Adverse Possession Claim to Meet Limitations Period

At 15 years, Virginia has a particularly long time-period requirement for continuous occupancy of the land by the would-be adverse possessor. (In some states, the number can go as low as five years.)

Having said that, a trespasser does not necessarily need to occupy the land for that entire 15-year period. Sometimes, courts will allow "tacking on" of a previous trespasser's occupancy of the land if there is a chain between them. In our example above, imagine that Dale sold "his" hut property to Ben after 12 years. If Ben inhabited the hut under all of the other adverse possession requirements for an additional 3 years, he would be able to claim title to the land against Elaine (since the total would be 15 years).

Filing an Action to Quiet Title

What if you're a property owner and notice that a trespasser is living on your land? Or 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 them 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 (from a General District Court judge) that you own the land and that 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.

Public Use Land Cannot Be Taken Through Adverse Possession

In Virginia, 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 alongside a state park in Virginia Beach, you cannot seek to expand your yard by "possessing" part of the parkland for 15 years or more.