How to Avoid Adverse Possession

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methods

1Securing Your Property

2Suing for Trespass

3Granting Permission

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References

Through adverse possession, another person can develop an ownership interest in part of your land, simply by using it for a number of years. The legal concept requires that person meet specific conditions, including open, hostile, continuous, and exclusive possession of the property in question. To avoid adverse possession, you must take adequate precautions to prevent others from using your property. You also can sue trespassers, or provide specific people written permission to use it in specific ways for a period of time.

Steps

Method 1

Method 1 of 3:

Securing Your Property

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   Build a fence or wall. If possible, installing a perimeter fence or wall around your entire property can help keep others out and also demonstrate to a court of law, in the event of a claim of adverse possession, that you did not acquiesce to the other person's use of your property.

   • If you're unsure about the boundaries of your property, make sure you get a survey done before you put up a perimeter fence.
   • On the other hand, if you're simply fencing off an area that you know to be within your property, or installing a gate to block access, a survey may not be necessary.
   • You do, however, need to search property records to make sure there isn't an existing easement that requires access to your property. An easement is a limitation or restriction on your absolute property rights, and you generally aren't allowed to interfere with it.
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   Put up signs. Signs declaring "Private Property" or "No Trespassing" put others on notice that they are in a place where they are not permitted on land they have no right to use. These signs also provide blanket protection you can use to avoid an adverse possession claim.

   • You can buy signs at your local home improvement store that will suit the purpose.
   • Signs are especially handy if there's a portion of your property that is regularly used, or that you suspect others aren't aware is private property.
   • For example, if your house abuts a lake, you may want to put up signs on the shore of the lake around the portion of the lake shore that is part of your property. This puts anyone on notice that they are trespassing, since it's difficult if not impossible to fence off a lakefront.
   • A sign won't do anything to prevent people from trespassing on your property, but it can serve as a deterrent. However, keep in mind that someone attempting to establish an adverse possession claim typically will not be deterred by any signs.
   • Part of the requirements for adverse possession is that the claim be "hostile," meaning that the person is asserting a claim to use the property that conflicts with yours.
   • At the same time, to succeed in an adverse possession claim the person must show that you knew about their presence and use of your property and did nothing about it. A posted sign can help defeat that.
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   Monitor your property regularly. Particularly if you have a large expanse of undeveloped property, it should be walked by people who know how to spot signs that someone is potentially using the property without permission.

   • Look for well-worn foot paths, the remains of a campfire, or garbage. These are signs that someone is frequently using the property.
   • If you have a fence around all or part of your property, it should frequently be inspected for any holes or damage. If a breach is discovered, repair it quickly.
   • Take a camera with you when you walk your property, and carefully photograph any evidence of trespassing you find before you remove any garbage or debris.
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   Consider implementing additional security measures. Lights, alarms, and motion detectors can be used to further secure your property if you are having continual problems with people using it without your permission.

   • Floodlights used in combination with motion detectors can be a good way to deter people from your property, especially if they're sneaking on at night. When the light comes on, they know they are visible, and may move somewhere else to avoid further detection.
   • Alarm systems may not be a cost effective solution for a large tract of undeveloped land, but can be beneficial in or around structures, regardless of whether the building is regularly inhabited.
   • If you know someone is using your property, you also might want to install security cameras in the places where they frequent or the location you've identified as their entry point onto your property.
   • Keep in mind that booby traps and other mechanical anti-trespassing devices are illegal in all states.
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Method 2

Method 2 of 3:

Suing for Trespass

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   Ask the person to leave. A court could infer that you consented to someone's use of your property if you observe them but say or do nothing about it. If you don't feel safe confronting the person on your own, consider calling the police.

   • You must let the person know that they are not welcome as soon as you learn of their presence. Even though it takes years to establish an adverse possession claim, you don't know how long they've been on your property.
   • Since one requirement for adverse possession is that you knew about the person's presence on your property and acquiesced to it, letting even one opportunity slip without saying anything can threaten your property rights.
   • Whether you confront the person yourself or get a law enforcement officer to do it for you, make sure the person is aware of the fact that they are trespassing on private property and that they are not welcome.
   • Let the person know that you will file a lawsuit if you see them again.
   • Keep in mind that if you have repeated problems and want to file a lawsuit, you have to know the name of the person as well as an address where they can be served with court documents.
   • For this reason calling the police to respond and remove the trespasser can be beneficial, because the officer will ask them to produce identification and will record their name and address in the police report.
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   Gather documents to prove you own the property. To sue someone for trespassing on your property, you must be able to prove to the court that you own the land in question and did not give that person permission to use it.

   • The court may require you to attach a copy of your deed or other ownership document to your initial complaint.
   • When you gather your deed and other documents, make sure you check for any recorded easements or other uses of the property that run against your deed. These may have been recorded by a previous owner without your knowledge.
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   Have your property surveyed. Particularly in situations involving a neighbor using land within your property boundary, you may have to have a professional surveyor mark the property lines according to your deed so you can confirm the contested area is actually part of your property.

   • You can expect to pay several hundred dollars for a professional survey from a licensed surveyor. If you're on reasonably good terms with your neighbor, you might consider asking them if they are willing to split the cost with you.
   • Look for a surveyor who is licensed in your state and who has a good reputation and experience surveying property similar to yours.
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   Draft your complaint. Your complaint identifies the person you believe is trespassing on your property and lists factual allegations describing their trespass. You may ask the court for monetary damages or simply for an injunction ordering the person to stop trespassing on your property.

   • If you have a police report from a previous encounter with the individual, you can use the name and address found there.
   • Look up the civil trespass law in your state and isolate the elements of the violation. Each of the parts of the law are distinct factual things that must be proven in court.
   • You also must include an allegation in your complaint that corresponds to each factual element of the trespass law. If you leave something out, the other party may be able to get your lawsuit dismissed for failure to state a claim.
   • Typically you would ask for an injunction, but you may include monetary damages if the person altered or destroyed your property as a result of their use.
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   File your complaint. Once you've completed your complaint, you must take it along with at least two copies and file them with the clerk of the court you want to hear your lawsuit. The clerk will keep the originals for the court's records and return the copies to you.

   • You can expect to pay a filing fee to initiate your lawsuit – typically several hundred dollars. If you don't believe you can afford the filing fee, ask the clerk for a fee waiver application.
   • You must provide details about your income and assets on the waiver application, and if those fall below the court's threshold you won't have to pay any court costs for your lawsuit.
   • Once you've paid the fees, you'll get one file-stamped copy for your records and the other to be served on the person you're suing.
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   Have the defendant served. One of the copies of the complaint, summons, and any other documents required by the court must be served on the person you're suing for trespass. Typically this is accomplished by having a sheriff's deputy hand-deliver the documents.

   • You also may have the ability to complete service by mailing the documents using certified mail with returned receipt requested. The green card you get back when the documents are successfully delivered serves as proof of service.
   • Because the other party must be served, it's important that you have the correct name and an address where they can be found. If they cannot be served, you won't be able to have a judge hear your case.
   • After service is completed, you must file a document establishing proof of service with the court. If you had a sheriff's deputy hand-deliver the documents, they usually will complete and file this document for you.
   • If you used certified mail, you'll have to complete the proof of service form yourself and file it with the clerk along with your returned receipt.
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   Wait for a response. When the defendant is served with your complaint, they have a limited period of time – typically less than 30 days – to file a written answer or other response to your lawsuit. If no response is filed within that time, you may be eligible to win by default.

   • Keep in mind that even if the person doesn't respond, you still have to file a motion for default and then go into court and argue your case to the judge. You generally must be able to prove that you are entitled to the damages you requested.
   • If the person files a written answer to your lawsuit, it will be served on you in the same way you had the complaint served on them.
   • Read the answer carefully and be on the lookout for a counterclaim. Sometimes if you sue someone for trespass, they will countersue you for monetary damages stemming from injuries they sustained while on your property.
   • If the person files a counterclaim, you have a brief period of time to respond to their allegations, just as they had to respond to your complaint. #*Assuming all the initial documents, called pleadings, are proper, you can commence litigation towards the trial.
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Method 3

Method 3 of 3:

Granting Permission

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   Send a letter to the person. If you don't object to the person's use of your property and want to work something out with them, you can avoid adverse possession by creating a written agreement granting them permission to use your property.

   • Before you send your letter, think about what you ultimately want to accomplish. If you're okay with them using your property for free, let them know this – but you still need to get the agreement in writing.
   • More likely, you expect to be compensated in some way for this use. Come up with an amount that you think is fair to charge as "rent," and build a range around it from the lowest amount you would be willing to accept to the highest amount you think you can legitimately ask for.
   • Briefly explain the factual situation in the letter, and let the person know that you would like to negotiate with them the right to legally use your property.
   • If you expect to be paid, start with a number at the high end of your range and indicate that you are open to discussion.
   • Give the person a deadline to respond – a week or two from the date of receipt should be sufficient.
   • Make a copy of your letter for your records before you send it, and then mail it using certified mail with returned receipt requested, so you know when it's received. When you get the green card back, mark your deadline date on your calendar.
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   Negotiate an agreement. Sit down with the person who has been using your property to work out the terms of the agreement granting them permission – legally known as an easement on your property.

   • Negotiations typically run more smoothly if you can meet at a neutral location not too far away from the property – maybe a nearby park or coffee shop.
   • Be polite and civil with the person when you meet, and avoid being antagonistic or accusatory. If you have a pre-existing relationship – for example, maybe they're your neighbor or a family friend – this probably will be easier.
   • The person may want to know why they should have to pay you now when they've used the property in the same way for however long without having to pay anyone a cent.
   • Respond to this argument by explaining that you want to make the use official, so that no one else can keep them off the property either, and that a written contract must be supported by consideration to have legal effect.
   • If negotiations have stalled, you might also want to mention that the free access they previously enjoyed will no longer be available to them – either because you will install a fence, or because you intend to sue them for trespass if they're discovered on your property without permission.
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   Draft a written agreement. Any agreement involving the rights to real property, including an easement, must be in writing to be legally enforceable. Your agreement should include all relevant information about the easement you've agreed to grant the other person.

   • You may be able to find a form or template online that you can use as a guide when you draft your agreement – but these agreements don't typically have to follow any specific format or include any particular language to be legally valid. #*Make sure the words you use aren't inadvertently granting the person greater rights than they were using previously.
   • For example, if your neighbor has a vegetable patch that encompasses 10 square feet of your property, specify that 10 square feet – not just any area of that size anywhere on your property – and don't grant any additional land for that use.
   • If the person is paying you for the use, write specifically how much they are paying you and how often. For example, your neighbor with the vegetable patch may be paying you $10 a month.
   • You also want to include the duration of the agreement. You may have it last as long as you own the property, for a set number of years, or as long as that person is your neighbor. Pick a duration that best suits your needs.
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   Sign the agreement. Provided you both agree with the terms and conditions laid out in the written agreement, it's ready for both of you to sign. You must follow the signature and witness requirements set forth in your state law dealing with real property agreements.

   • In many states, signatures on contracts deal with real property rights must be signed in the presence of witnesses, or a notary public, or both.
   • Once you've signed the agreement, make two copies of it so both you and the other person have one for your records.
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   Record the agreement. Once the agreement is finalized and signed, take it to the county recorder's office in the county where the property is located so it can be recorded along with the deed to the property.

   • Check with the county recorder to find out what the requirements are for recording a document. Some recorders may require an original document as well as copies.
   • You will have to pay a fee to record the agreement, typically under a hundred dollars.
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