Adverse Possession: When is Theft Ok?

  1. Civil Disputes
  2. Adverse Possession: When is Theft Ok?
Woman sitting on ground

One thing people often mention when discussing property concerns is the notion of “squatters rights.” Luckily, “squatters rights” as often described by people do not technically exist.  The feared scenario of hippies breaking into your home while you are on vacation and gaining legal ownership does not really happen.  There is something like it called Adverse Possession.

Adverse possession is one of the times the saying “possession is nine tenths of the law” can be true as it essentially legalizes the theft of property.  In the real estate context, a trespasser goes onto someone else’s property and, if they stay on the property for multiple years and fulfil certain other requirements, they gain legal ownership of the property.  Adverse possession exists to reward people for productive use of property.  If a person uses the property without improving it, they likely cannot claim it.

A good acronym to remember for adverse possession is OCEANA: Open, Continuous, Exclusive, Actual, Notorious, and Adverse.  The person who seeks to adverse possess the property must be acting as if the property is theirs alone (exclusive and actual), that if the true owner were to visit the property they would be aware of it (open, continuous, and notorious), and that the true owner did not give consent for the person to be there (adverse).  One way to preemptively stop someone from adverse possession is to give permission: if you allow someone to stay on your property rent-free for several years, they cannot adversely possess your property.  However, if you put up a “no trespassing sign” and do not actually stop people from staying on your property, they may be able to claim it.

There are various exclusions and difficulties to adverse possession.  It cannot be done against the government and there may be issues if it is done against someone who was a minor or disabled when the adverse possession began.  Also, a group of people cannot adversely possess the same property, which is why the often-feared squatters that break into an abandoned townhome cannot realistically gain legal ownership of it.

Adverse possession against co-tenants is also possible, but this is more difficult.  This requires one of the co-tenants to kick the others out (which is referred to as “ouster”) and the cotenants must have notice of this claim.  You realistically cannot simply change the locks and hope they do not find out.

Some states require the adverse possessor to pay the property taxes to start the clock for adverse possession.  Other states only allow adverse possession if there is “color of title,” which essentially means that there is some major defect in the title.

Adverse possession automatically occurs once the conditions are met.  The adverse possessor gains the legal ownership of the property at that point.  However, it is best to go to a court to record quiet title to the property to formalize your ownership.

Adverse possession varies much based-on state law and unique circumstances, so if you have an adverse possession issue, or other legal issue, contact King Law at 888-748- (5464) KING for a consultation. We have offices located across western North Carolina and upstate South Carolina.  King Law is here to serve you and help navigate this journey you are on.

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