How Your Neighbor Can Legally Take Your Land

What if I told you that you could claim a piece of land you’ve never owned, simply by living or using it long enough?

It’s true – sometimes a court will grant you ownership of property even though the owner never sold it to you. It’s a legal concept known as “adverse possession.”

In short, adverse possession allows a person to claim ownership of land under certain conditions if they have occupied it for a specified period without the permission of the original owner. Essentially, if you treat a piece of land as your own long enough, a court will just decide that you’re the legal owner of it. Even if you have drafted a will or have your property in a life estate deed, or trust – no legal instrument can protect you from adverse possession.

The legal theory of adverse possesion is that as a society we should maximize the beneficial use of all our land. So when a land goes unused for 20+ years by the owner, thats when society steps in and says lets give it to someone else who has found a beneficial use for it.

However, courts don’t necessarily make it easy to take ownership of someone’s land without their permission.  In order to obtain title to land by adverse possession, the occupant must prove these 6 elements:

1. Actual Possession – You have to actually be in possession of the land. This doesn’t mean you can never leave the premises, though. It just means that you have to be in possession of the land in a way that an actual property owner would be in actual possession of their land. In other words, they can run to the store if they have to.

• Continuous – This just means that it has to be for a, well, continuous period of time. There can’t be any extended breaks in your use of the property.

• Open and Notorious – “Open” here means to the public, essentially. You’re openly using the land. “Notorious” doesn’t mean like how John Dillinger is notorious, or how Biggie Smalls is notorious, or how Duran Duran is notorious.

In the context of adverse possession in Massachusetts, “notorious” means that the use of the property must be open and pronounced so that it would be known, directly or indirectly, to the landowner if they maintained a reasonable degree of supervision over the property. The landowner doesn’t have to actually know that you’re using the property; it’s enough if you’re essentially putting the landowner on notice that you are treating the property as your own.

• Adverse and Hostile – “Adverse” is self-explanatory enough. It means you’re trying to get land that doesn’t belong to you at the moment. “Hostile” here doesn’t mean there has to be hostility between you and the owner, or you and the neighbors.  For the purposes of adverse possession, “hostile” means that the possessor’s use of the land is without the permission of the true owner.

It’s important to note that the majority rule and the modern trend is that most states don’t look at the intent of the person bringing the adverse possession claim. They don’t have to know they weren’t the true owner. They just have to use the property as if they were the owner.

• Exclusive – This one’s pretty easy, and makes sense. You have to be the exclusive user or “owner” of the property; you can’t share it with the current owner, and, in fact, you can’t share it with anybody.

• Statutory Period – In Massachusetts, you have to use the land for 20 years before you can gain ownership by adverse possession. In Connecticut, it’s 15 years.
  
  There is also a concept called “tacking,” where you and another person can add together your two lengths of time that you used the property to get to the statutory requirement of 20 years. This can occur if Person A is adversely using Landowner B’s property, then Person A sells to another person (let’s call them, you guessed it, Person C). If Person C wants to claim ownership of Landowner B’s property even though C just moved in 5 years ago, C would have to prove that A used the property for 15 years before that, and that there was no break in the chain of ownership between A and C.

Adverse possession issues mainly arise in the context of border disputes. One person believes they own an inch or two extra extending into their neighbor’s boundaries. If they can prove an adverse possession claim, several inches extra extending around the property can result in a large property gain for the plaintiff. For this reason its important to have your property surveyed to protect yourself.

So now you have all the tools to take ownership of land via adverse possession. I know, it’s a LOT, and it takes a WHILE. I’m not suggesting you go start adversely possessing property. But it can absolutely come in handy if you’re selling your house – every square foot counts towards that property value, and there’s a chance a court might give you some without your neighbor’s permission.