Most homeowners are unaware that their property could be legally taken from their possession by a trespasser. It sounds outlandish, but unfortunately, such a shocking transfer of ownership can happen, and property owners should be educated on their state’s laws regarding this process. Knowing the rules can help homeowners reduce the risk of losing their property unexpectedly or being taken advantage of.
Authors and attorneys Emily Doskow and Lina Guillen provide a brief outline of what homeowners should know in their book Neighborhood Law. Here’s a glimpse into what they argue are the most need-to-know pieces of information.
How Can A Trespasser Take Legal Possession of A Property?
There are a few paths by which a trespasser can take ownership of a property. In their book, Doskow and Guillen identify two specific legal opportunities: via adverse possession and prescriptive easements.
Adverse Possession: What is it, and how does it affect property owners?
One of the legal doctrines that allow trespassers to become owners of a property is called adverse possession. Trespassers can become the owners of just a few hundred feet of the property, or they may gain access to hundreds of acres. This can be either intentional or unintentional.
Adverse possession laws differ from one state to another. However, most follow the same basic principles. Here are the five legal requirements that have to be met for a trespasser to claim adverse possession. For this example, we’ll specifically use the laws in California. In that state, a trespasser’s possession must be all of the following:
- accompanied by a claim of right or color of title (meaning the trespasser is either asserting ownership despite having no purchase documents, or actually has some sort of title document making it look like he or she might be the owner)
- hostile (against the right of the true owner and without permission)
- actual (exercising control over the property, including things like enclosing or continually improving it, to show the area is being claimed)
- open and notorious (using the property as the real owner would, without hiding one’s occupancy; thus, essentially putting the original owner on notice), and
- continuous for the statutory period (which is five years in California under Cal. Civ. Proc. Code § 325).
Additionally, in California, they must have paid taxes on the subject property for at least five years.
Prescriptive Easement: What is it, and how does it affect property owners?
As the authors summarize, “An easement is a legal right to use someone else’s land for a particular purpose.” They are “part and parcel of the land they affect. They don’t change when the property changes hands.” They “are sometimes in writing and referred to in property deeds or title papers prepared by a title insurance company or attorney.”
There are various types of easements, but the most common easement is a utility easement. These easements don’t generally interfere with property owners’ daily living, and they include scenarios such as water pipes that run under the property.
Other easements exist that might only apply to individual properties. For example, an easement may permit another individual or party access to a path or driveway, or for sewer or solar access. Often, these include private easements, which all property owners should be aware of before they purchase a property.
A prescriptive easement, however, is one that homeowners should understand to reduce the risk of unwanted trespassing. Understanding the rules of a prescriptive easement will limit the risk of a trespasser legally gaining access to their land. These easements are not always intentionally created and may be impacted by simple acts such as letting someone use private land in order to access a local beach. After time, however, those visitors may gain legal rights through their actions.
In California, a user of land may establish a prescriptive easement by proving that his or her use of another’s land was:
- continuous and uninterrupted for five years
- open and notorious; and
How to Avoid Claims Related to Adverse Possession and Prescriptive Easement
If a trespasser’s possession follows these guidelines, the landlord is at risk of losing their property. Therefore, it is critical for property owners to understand their property lines and take effective actions to reduce their risk of trespassers. This can be fairly simple. For example, one common tool you have probably seen dozens of times is that property owners can post signs marking private property and can block the entry of their property with fencing.
In some cases, trespassers may already be using the property! If this happens, there are a few recommended steps a property owner can take:
- Give written permission. If you know that someone is using your land, give them permission. This acknowledgment makes their use of the property no longer hostile. Remember that hostile use of the land is one of the stipulations that makes an easement possible.
- Present a rental agreement. Most of the time, presenting a rental agreement will scare a trespasser off your land. If the trespassers are not deterred, you still benefit by providing yourself the opportunity for passive income.
- Call the police. When you do not want someone on your property, yet they refuse to leave, you can call the police. Even if the offender is simply a neighbor whose garden is persistently encroaching on your land, notifying the authorities is an important step toward documenting the offense and protecting your property.
If a trespasser presents to be a threat, you should hire a lawyer as soon as possible. Depending on the situation, you may need to file a lawsuit to have that individual removed. Remember: You must do this before the trespasser has been on the land long enough to make an adverse possession claim. We all want to be good neighbors and give others the benefit of the doubt, and that’s a good impulse, but be certain that you protect yourself and your property by being informed about adverse possession, easements, and other tools that can potentially be used to take your land out from under you.
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