Adverse possession: Can my neighbor take a portion of my property?

Adverse possession: Can my neighbor take a portion of my property?

By Gregory Gillis

Arizona landowners need to be wary of infringement upon their property in order to ensure that they do not lose their land through an adverse possession.

As a landowner, you may be surprised to learn that a neighbor can occupy your land for a period of time and then gain legal ownership of it. If a neighbor is using your property, even a small strip along the edge, you should be aware of the risk because that neighbor may be able to acquire title to it through a legal doctrine known as adverse possession.

In Arizona, a person is entitled to legal ownership of property if the person’s occupation of the property is hostile, actual, open and notorious, exclusive and continuous for a period of 10 years.

In addition, even if a person cannot legally claim ownership of your property, the person may be able to gain the legal right to use part of your property. This is called a prescriptive easement, the elements of which are basically the same.

The distinction between adverse possession and a prescriptive easement is that adverse possession leads to acquiring actual ownership of the disputed land, while a prescriptive easement leads not to ownership but rather the right of continued use.

Hostile use

Arizona courts have defined hostile use of land to mean that one must show 1) possession or occupation of the land, 2) that they have a claim of exclusive rights to the land, and 3) denial of title to the true owner by words or action, such as continued use to the detriment of that owner.

Possession

Actual, open and notorious possession is another element. The person seeking to adversely possess the disputed parcel must actually be in “possession” of the property and treat it as if the person is the owner. This means there must be a physical presence on the land. A person’s intent to possess the land is not enough for someone to make a claim of ownership.

The words “open and notorious” simply mean that the person’s use of the land must be obvious to anyone, including the true land owner. The clear example is the neighbor whose fence or driveway is obviously on your property.

Continuous use

The person must possess the land exclusively and without interruption for the 10-year time period. In order to meet the 10-year time period, it is possible to add or “tack” on the years of use by your prior owner.

For continuous possession, the person cannot cease using the property for a period of time, recommence using the property and then include the time that it was abandoned. The use must be maintained continuously for 10 years.

Owner options

There are several steps an owner can take to prevent a neighbor from gaining a legal claim to your property:

Grant permission: One effective way to thwart a possible claim for adverse possession or easement by prescription is to give permission to use a portion of your land. To be safe, put the permission in writing and obtain your neighbor’s signature as an acknowledgement.

Obtain title insurance: When you buy a home or any kind of real property, you expect to enjoy certain benefits from ownership, such as being able to occupy and use the property as you wish, to be free from debts or obligations not created or agreed to by you, and to know that you have the right to use all of your property. Title insurance is designed to protect you from certain risks, including possible claims of adverse possession or prescriptive easements.

Hire an attorney: If you believe that a person may have a claim against a portion of your property under an adverse possession or easement by prescription theory, see a lawyer. You need to take steps to prevent losing ownership over the disputed portion of land by adverse possession.

Gregory Gillis is a founding shareholder of the firm of Nussbaum Gillis & Dinner, P.C. His practice focuses on construction law, real estate and business litigation, and dispute resolution. Gillis recently was appointed to the American Arbitration Association’s Roster of Arbitrators and Mediators. He can be reached at 480-609-0011 or ggillis@ngdlaw.com.

The information contained in this column is for informational purposes only and should not be construed as providing legal or tax advice. If you have any questions regarding the topics discussed in this article, you are advised to contact an attorney or tax adviser.