Who Can Claim Property Based on Adverse Possession in West Virginia?

When a trespasser or encroacher in West Virginia can claim legal title to a piece of land.

As a homeowner in the West Virginia, your property is likely your most valued asset. Unlike a car or other piece of personal property, your home is an investment, theoretically gaining in value with each passing year. Given that, protecting your investment is crucial. Adverse possession can allow your neighbors or trespassers to acquire title to 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 West Virginia’s adverse possession laws.

How Adverse Possession Laws Work

Adverse possession is a legal concept that allows a trespasser—sometimes a total 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 person 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 West Virginia is regulated by statute, but also by the state courts. Of course, there are some hurdles to clear before someone can claim a piece of your West Virginia 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.

West Virginia’s Requirements for Adverse Possession

There is no single statute in West Virginia that dictates the elements that a trespasser must establish in order 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 West Virginia 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 ten years in West Virginia, under W. Va. Code § 55-2-1).

In addition to these factors, West Virginia courts have also described certain types of evidence that are likely to weigh in favor of granting a trespasser adverse possession. These include:

  1. the trespasser having supposedly purchased the land in good faith
  2. the trespasser having paid taxes on the property
  3. the trespasser having made repeated attempts to exclude others from the land, and
  4. the trespasser holding a deed that includes the disputed land.

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.

Let's take a hypothetical. Imagine that Marcelo and Fred live next to one another in a suburb outside of Wheeling. Without a wall between their properties, Marcelo begins to put outdoor furniture on what is technically Fred’s land. Eventually, Marcelo builds an entire art studio there. Fred never says anything. The years pass—ten years, in fact. Under West Virginia’s adverse possession framework, Marcelo will likely be successful in establishing an ownership claim to that portion of Fred’s property. Note that he won’t be able to take over all of Fred’s land—only the portion upon which he constructed the art studio and which he actively used for those ten years. West Virginia’s courts would be reluctant to suddenly eject Marcelo and his studio after so much time has passed.

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

Normally, a West Virginia’s trespasser’s adverse possession of a piece of property must be continuous for ten years.

However, a West Virginia trespasser does not necessarily need to occupy the land for that entire 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 Marcelo sold “his” studio property to Mark after five years. If Mark inhabited the studio under all of the other adverse possession requirements for an additional five years, he would be able to claim title to the land against Fred. The two five-year periods can be “tacked” together.

Cutting Off an Adverse Possession Claim With Action to Quiet Title

What should you do if you spot a trespasser or a neighbor starting to use ("encroaching on") your West Virginia land? Your first move, of course, is to speak with the person and ask that he or she remove all property and 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 West Virginia state court judge (specifically a 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.

No Adverse Possession Claims Possible Against Government Land

Any property that is held by West Virginia’s state and local government entities is ordinarily immune from adverse possession actions. So, if you live next to an unused state park in Charleston, you won’t be able to “annex” a larger yard by building a structure and waiting ten years. West Virginia’s government always has first priority when it comes to ownership.

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