Adverse Possession: Can My Neighbor Take a Portion of
Arizona landowners need to be wary of infringement upon their property
to ensure that they do not lose their land through an adverse possession.
This article was published in the February 2017 issue
of the Scottsdale Airpark News.
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 your land. If a neighbor is using your property, even a small strip along the
edge, you should be aware of the risk, as 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 to the right of continued use.
Arizona courts have defined hostile use of land to
mean that one must show:
possession or occupation of the land,
have a claim of exclusive rights to the land, and
denial of title to the true
owner by words or action such as continued use to the detriment of that owner.
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
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
The person must possess the land exclusively and without
interruption for the 10-year period. In order to meet the 10-year requirement, 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.
There are 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, being free from debts or obligations not
created or agreed to by you, and knowing 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.