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Adverse Possession and How It Works

Deborah Neyens is an attorney, educator, and freelance writer with a B.A. in political science and a J.D. from the University of Iowa.

Adverse possession is a legal doctrine studied primarily by first-year law school students and forgotten as soon as exams are over. The otherwise obscure property law, also known as "squatter's rights," made big news in 2011 when a Texas man claimed to acquire a $340,000 home for just the $16 fee to file an affidavit of adverse possession at the county courthouse. Ken Robinson subsequently created a website, published an eBook, and lectured a class of law students at SMU before being forced to move out of the home in February 2012.

So what is adverse possession, and can it really be used to take ownership of a pricey suburban home?

Adverse possession relates to trespassing.

Adverse possession relates to trespassing.

The Law of Adverse Possession

The theory behind adverse possession is simple: If someone occupies land they don't own without the owner's permission, the true owner must take action to eject the trespasser within a certain period of time (as prescribed by the applicable state statute of limitations). If the true owner doesn't act in time, the adverse possessor can acquire title to the land and become the legal owner.

Five Essential Elements

In order to prevail, the adverse possessor must show these five essential elements:

  1. That he or she is in actual possession of the land and uses the land as the true owner of similar property would.
  2. That the possession is in exclusion to all others and not shared with the true owner or the general public.
  3. That the adverse possession is open and visible for all to see so the true owner would be aware that someone else was staking claim to the property.
  4. That the adverse possessor has a claim to the property that is hostile to or incompatible with the owner's claim.
  5. That the adverse possession has been continuous and uninterrupted throughout the statute of limitations period.

Requirements Vary by State

The detailed requirements vary from state to state. The required time of possession may be as short as five years in one state to as long as 20 years in another. Some states require the adverse possessor to pay property taxes or make improvements on the land during this time; in other states, these actions shorten the required time of possession.

Some states require the adverse possessor to have a good faith belief that he or she holds title to the property; some states even require "color of title," some form of document that purports to convey title to the adverse possessor but is invalid for some reason. Other states require the adverse possessor to be aware that he or she is trespassing. In some states, the adverse possessor's state of mind is irrelevant, and all that matters is that the land is being occupied without the true owner's permission.

Consult the laws of your state for additional information.

An Instructive Case

While the statute of limitations period is set by state law, the doctrine's requirements are defined by court decisions written by judges. To illustrate how adverse possession works, we'll look at a court case that gave many law students their first introduction to the concept.

Belotti v. Bickhardt

Belotti v. Bickhardt, decided by the New York Court of Appeals in 1920, involved the owners of adjacent lots in the Bronx. The owner of Lot J constructed a saloon and roadhouse on the property in 1892 but, due to a faulty map, the building encroached by several feet onto Lot K next door, which was owned by Belotti's mother. In 1906, Bickhardt bought Lot J from the original owner's heirs, expanded the building and used it as a hotel ever since.

In 1914, Belotti brought suit against Bickhardt to remove the encroaching building from the lot he had inherited from his mother. Belotti met with success at the trial court level, but Bickhardt appealed. The New York Court of Appeals reversed the original ruling, finding Bickhardt met the requirements for adverse possession.

Bickhardt had not possessed the disputed property for the 20 years required under the New York statute of limitations, but the court found the prior owners' occupation of the property tacked on to his to create an unbroken chain of adverse possession since 1892. Bickhardt was now the rightful owner under the law.

The Purpose of Adverse Possession

While some may view adverse possession as acquiring title by theft, the doctrine serves several important purposes.

First, the law presumes that someone who possesses land does so under title. Title may be difficult to prove because deeds were lost and not recorded or land title records are deficient. The doctrine of adverse possession provides protection against unreliable documents and a means to correct long-ago errors in conveyancing. The doctrine also requires property disputes to be litigated within a reasonable period of time while witnesses' memories are still fresh and evidence is more reliable.

Adverse possession encourages productive use of land by rewarding those who use the land for farming, housing or other uses while penalizing those who let it sit vacant. Finally, it protects the expectations of individuals who have used property for years without objection from anyone. It often comes up in the context of a boundary dispute where a fence was built in the wrong place and no one questioned the encroachment for years.

The Texas Adverse Possession Case

Ken Robinson gained notoriety during the summer of 2011 when he moved into a vacant house in the Dallas suburb of Flower Mound and claimed it as his own based on payment of a $16 filing fee.

Background on the Case

Robinson, a former marine and self-described real estate investor, had discovered the home while scouting the area for potential investment opportunities. The yard was unkempt, and the house appeared to have been abandoned.

Initially thinking the home would be a good candidate for a short sale or tax lien sale, Robinson could not find an owner or mortgage holder with whom to negotiate, and there was no record of a foreclosure anywhere to be found. That's when he decided to acquire the house under the doctrine of adverse possession. He filed an "affidavit of adverse possession" with the county, had the locks changed, and moved in.

Although Robinson was now maintaining the home, which had fallen into a state of disrepair, his Flower Mound neighbors weren't happy. They called the police, who visited the home. When Robinson showed the officers his affidavit, they decided it wasn't a criminal matter and left.

National Media Coverage

The story hit the national media and Robinson was inundated with requests for real estate advice. He began holding seminars on how to acquire a house for next to nothing and published an eBook on the subject. He welcomed potential clients and members of the media into the home and was happy to provide tours and point out how he had cleaned things up. Then fame caught up with him.

As it turned out, the original mortgage company had gone bankrupt in 2009 and the mortgage was now held by Bank of America, which had been too swamped with other foreclosures to take action on the Flower Mound house. But faced with a blossoming adverse possession cottage industry and others seeking to replicate Robinson's seeming success, it and other lien holders began cracking down. On February 6, 2012, a Texas judge ordered Robinson to vacate the house within a week. He left without protest.

Why Robinson's Scheme Didn't Work

Did Robinson really believe he'd acquire title to the house, or was he simply biding his time in swanky digs while cashing in on all the publicity?

Under Texas law, Robinson had to stay in the house for five years, all the while paying property taxes and homeowners association fees, to acquire title by adverse possession. At any point during those five years he would be subject to eviction by the true owner, which ultimately is what happened after Bank of America caught wind of his scheme. What about that $16 affidavit of adverse possession he filed? It simply put the world on notice of his claim and provided a starting date for the five years to run; it did not convey title.

The lesson in Robinson's story goes back to the purposes for which the doctrine of adverse possession was developed. It was meant as a means to resolve bona fide disputes over property resulting from historically pervasive problems in real estate like mistaken and inadequate surveys, deficient land titles, or missing or defective deeds. Adverse possession was never intended to reward willful trespassers and squatters. As Ken Robinson learned, it's not a good business model for real estate investors.

Adverse possession was not intended to reward trespassers and squatters.

Adverse possession was not intended to reward trespassers and squatters.

This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.

Comments

annette on August 10, 2014:

Mr. Robinson lost his right to home ownership through Adverse Possession: not because the law is antiquated and impossible. Bank of America claimed to have right of title being transferred to them. It is not up to a judge to fact check. Mr. Robinson may have found that bank of America had no legal claim to title as well. Did Mr. Robinson check to see if in fact BofA had a right to ownership? My guess is he did not. I know of a case where an inactive bank claims to have ownership of a foreclosed home. The home and property is being held hostile under color of title and adverse possession.I have owned my home for 3 years now. (i dotted my i and crossed my t)I found evidence of alleged fraud and was willing to hold them accountable. No one can adverse possess an entire home without the endeavor being in good faith. it would never work but the law exists to keep corporations honest as well.Boundary law should be a separate issue and adverse possession should not be allowed to determine property lines. That should solely be prescriptive easement.

Deborah Neyens (author) from Iowa on October 14, 2013:

Thanks for the comment, jimenez. Try checking with the various law schools in the state. Many law schools run legal clinics to provide assistance to those who otherwise can't afford it. Maybe one would be interested in taking on your neighbor's case.

jimenez on October 14, 2013:

its great that you explain it in words that we all can understand. Adverse possession on a home is something of a challenge, but more difficult with adverse possession property dispute with a fence in texas. Some articles state that in texas sqatters do not need to pay taxes , some say they do so where does one go to for elp when attorneys in texas want $$$$$ and they stae that one might lose their property. And nowhere can anyone find in law books if 4 or 5 feet in texas can be adversed. Poor poor neighbor disabled elderly has had stress related medical illnessdue to her situation. Sorry but im no attorney, and can't find oe in texas wanting to take her case due to them wanting five thousand just to see if neighbors will proceed with the ap claim. Which to my understanding they have not filed any claims in court. that's all i could do to help her. any free advice for the elderly in texas.

Deborah Neyens (author) from Iowa on March 19, 2013:

Thanks, Peggy. Adverse possession was something I learned about my first semester in law school and never really thought about again until the Texas story made the news. So it was very interesting to see how people started resurrecting this old legal doctrine to use during the height of the mortgage crisis.

Peggy Woods from Houston, Texas on March 12, 2013:

That is a very sad comment by h5mind. The mortgage debacle has many people hurt and the blame can be widespread. No wonder he is angry!

As to adverse possession...I learned something new. I had heard of the old squatter's rights which I think dates back to when this country was being founded. I understand the intent of these laws were probably good, but when people purposely take advantage of them, it is detrimental to the real owners. Ken Robinson is a good example of the latter. Up, useful and interesting votes.

Deborah Neyens (author) from Iowa on January 15, 2013:

Thanks for reading and commenting, midget. I think in many cases the homes weren't abandoned, but were foreclosed upon and the homeowners were forced to leave. It strikes me as taking advantage of someone else's misfortune.

Michelle Liew from Singapore on January 10, 2013:

I guess the process may not seem fair, but in view of the owner abandoning the land for some time, maybe someone else should own it. I guess it's a dicey theory that people will have many opinions on! Thanks for sharing this, Deb!

h5mind on May 30, 2012:

Since the article is talking about the questionable morality of "getting something for nothing", readers may want to research how the largest mortgage holders (particularly Freddie Mac and Fannie May) have sold thousands of perfectly good homes (many of which were renovated at taxpayer expense) for the princely sum of one dollar.

During the mortgage debacle, tens of millions of homeowners were unable to modify their loans and subsequently foreclosed upon. Shortly thereafter, their properties are offered via 'good neighbor' programs at whopping discounts, often selling for as little as one dollar, to police, teachers, and other civil servants.

The reason for such lunacy has to do with banks shedding losses on trillions in mortgage backed securities and "exotic derivatives", but the short version is banks are forcing homeowners onto the street to turn around and offer the same house to favored government workers at a pittance.

We know because it happened to us. The upside-down loan on our $300K home was "impossible" to modify permanently, so we eventually walked away. A few months later, we noticed the deed had been transferred to a county worker for a nominal fee of one dollar. If you're among the tens of millions of underwater homeowners or in some stage of foreclosure, you should be very, very angry.

Deborah Neyens (author) from Iowa on March 16, 2012:

Thanks for asking the question. Glad I was able to answer it for you!

Julie Grimes from Columbia, MO USA on March 16, 2012:

Thanks for answering my question. I was so confused about the issue but , your hub provided a clear understanding. Thanks.

Deborah Neyens (author) from Iowa on March 15, 2012:

If you liked this one, sunbun, stay tuned for my upcoming scintillating piece on the rule against perpetuities. ; ) (Now I bet that really made you shudder!) Thanks for stopping by to read and comment.

Deborah Neyens (author) from Iowa on March 15, 2012:

Hi, Jerry. Thanks for reading and commenting. Glad I was able to teach you something new.

sunbun143 from Los Angeles, CA on March 15, 2012:

My heart skipped a beat (in a bad way) when I noticed your hub title because it brought back memories of Property Law class! All of property law, including the doctrine of adverse possession, is very antiquated...but I have to admit, it's interesting, especially in light of current events. Thanks for writing so well...I actually think there are quite a few lawyers, mostly retired, on hubpages. Add me to the list! (active, non-practicing)

Jerry W Hulse from Kingsport, Tennessee on March 14, 2012:

Wow,

I grew up around lawyers and did not know this but they would not have taught it in my first year of contract law or at least I do not remember it.

Deborah Neyens (author) from Iowa on March 14, 2012:

Thanks to you both, againsttheodds and Curiad. I actually enjoyed digging out the old law books to research this. It's been a while since I had to think about adverse possession!

Curiad on March 14, 2012:

This is well written and clearly detailed. You made a complex legal issue much clearer and easier to understand. Well done Deborah!

Voted Up!

againsttheodds on March 13, 2012:

Nice article, you really did a good job explaining the adverse possession principle. Off to file some paperwork.

Deborah Neyens (author) from Iowa on March 13, 2012:

Thanks, Blawger. Glad to meet another attorney here on Hubpages! I will watch for your hubs, also. Thanks for the comment.

Bahin Ameri from California on March 13, 2012:

This is a great hub. I'm a Texas real estate attorney who has been bombarded with questions about adverse possession ever since the Robinson case was featured on Inside Edition and local news programs. Unfortunately, the media has made it difficult for people to understand that adverse possession is an antiquated legal doctrine which is almost impossible to prove up. Thank you for writing this hub and correcting all the misinformation circulating in the blogosphere. I look forward to reading more of your hubs.

Deborah Neyens (author) from Iowa on March 13, 2012:

Wow, Stephanie. I read about situations like that when I was researching this article. Good luck to your friend and thanks for the comment!

Deborah Neyens (author) from Iowa on March 13, 2012:

Thanks, Maddie. Glad I could teach you something new, hopefully in a more interesting way than when I had to learn about it in law school. : )

Stephanie Henkel from USA on March 13, 2012:

This is quite a story, and it's especially interesting to me because I recently met a woman who is fighting to get a squatter similar to Ken Robinson out of a house she owns. Apparently, he moved in, changed the locks and now claims the property belongs to him. I wonder if he read Ken Robinson's ebook? I do feel sorry for the real owner as she now has to go to court to get the intruder out of her house.

Thanks for an informative and clear explanation of the laws of adverse possession. Great hub!

Maddie Ruud from Oakland, CA on March 13, 2012:

Very informative! I didn't know the criteria for establishing adverse possession, so I learned something new!