The ins and outs of adverse possession

Utah Land

Trespassing, the act of entering someone’s private property without permission, is illegal. But when a trespasser continues trespassing for an extended period of time, the law may give the trespasser the right to stay on (or pass through) the land. This right is known as “adverse possession.” These rights range from the right to live on the land, to the right to pass across it to get somewhere else.

Requirements for Adverse Possession

If a piece of property has been used by someone other than the owner for a number of years, the doctrine of adverse possession may apply. State laws vary with respect to time requirements; however, typically, the possession by the non-owner needs to be open, notorious, and under a claim of right. In some states, the non-owner must also pay the property taxes on the occupied land. A permissive use of property eliminates the ability to claim adverse possession.

Requirements for a Valid Adverse Possession Claim

A trespasser must meet four elements to legally qualify for a claim to the property, which are:

  1. Hostile Claim – The trespasser must either merely occupy the land (with or without knowledge that it is private property); be aware of his or her trespassing; or make an honest mistake (such as relying on an incorrect deed).
  2. Actual Possession – The trespasser must be physically present on the land, treating it as their own.
  3. “Open and Notorious” Possession – The act of trespassing must be obvious.
  4. “Exclusive and Continuous” Possession – Trespasser was in possession of the land for an unbroken period of time, and has not shared possession with others.

Avoiding Adverse Possession: Permission

One common form of trespassing is when a neighbor’s driveway or fence encroaches onto someone else’s land. Sometimes the owner will not want to make an issue of the encroachment — either because it seems to be a minor problem or because the neighbor is a friend. To avoid problems later, however, the owner should give the “trespasser” written permission to keep the encroachment for as long as the owner continues to authorize it. If properly handled, this document will prevent the trespasser from acquiring a right to continue the encroachment and from passing along this right to future owners.