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Squatter's Rights: What It Is and What It Is Not

Squatter's Rights: What It Is and What It Is Not

“I’ve been cutting that field for years with my tractor. I probably have squatter’s rights to it.” That was said to me by a client several years ago. He was asking me about a vacant lot next to his land. He had driven his tractor over the field on a weekly basis for many years. What’s more, everyone in the area thought that he owned the land. Did he now have any rights to the land? And, what are “squatter’s rights” anyway?

The legal term is adverse possession. In an adverse possession case, the court can determine that another has title to land if several important facts have been proven. The time period by which one must occupy the property in some form or fashion is 15 years.

Elements of Proof

The elements of proof in a case for adverse possession follows.

Actual: One claiming title to land by adverse possession must exercise some type of dominion, use or enjoyment of the property through residing on the land, cultivating the land or some other type of regular and open activity of ownership. This is sometimes proven by fencing or walling off the property, though that is not necessary.

Hostile: The claimant must possess the land under some claim of right, which is adverse to the true owner. Often, a claimant is possessing land under the mistaken belief that it belongs to him or her. Virginia law now provides that one may still prove adverse possession through mistaken possession.

Exclusive: The claimant must typically act in a way that shuts out the true owner. This can be achieved through fences, erecting buildings or structures or making exclusive use of the property where no one else uses it.

Open/Visible: People have to be able to see that the land is actually being used or occupied. Adverse possession is deemed to be visible when it is so obvious that the true owner is presumed to have known about it.

Continuous: Possession must be continuous for the requisite period of 15 years. In some cases, the court will THE LEGAL POINT Squatter’s rights: What it is and what it is not allow “tacking,” whereby a predecessor in your ownership had met the above elements but not for the entire 15 years. You can then “tack” onto that time and collectively meet the 15-year requirement.

In the case of my friend and his tractor, simply cutting the grass would probably not be enough to prevail in court. The “exclusive” element is missing (i.e., he had not done anything to appropriate the property exclusively for himself). But suppose he had planted crops? Or built something on the land? Or fenced it off? That is the type of conduct that the court typically looks for in a case for adverse possession.

Also, one may possess the property under the mistaken belief that it belongs to him. Someone may have a bad survey or plat. Or, he may have just blissfully built his garden or poured a new driveway, mistakenly thinking it was his land. In Virginia, this can now be proof for adverse possession.

It is also important to note that one may not have a claim for adverse possession to the entire land. Instead, one may have acquired what is known as a prescriptive easement (an easement by adverse possession). Many of the elements of proof are the same, except that the statutory period is 20 years, rather than 15.

Even though the legal terms are that adverse possession must be “open” and “visible,” in the real world, adverse possession can be very subtle. If you’ve looked out your window and often wondered if that carport or that brick wall is on your land, you might want to look more closely. If you don’t, you may be facing an adverse possession claim years down the road.

For issues related to real estate law, call our Newport News lawyers. We are a top-rated firm with a history of success helping clients throughout Virginia.

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