How to Stay on Land Through Adverse Possession

Explore this Article

parts

1Possessing the Land Adversely

2Filing an Action to Quiet Title

3Responding to a Lawsuit to Eject You

4Going to Court

+Show 1 more...

-Show less...

Other Sections

Tips and Warnings

Related Articles

References

You can stay on land you have adversely possessed, but you might need to win a lawsuit in order to do so. Depending on your state, you can gain title to property if you continuously occupy the land for a certain amount of time in a manner that is visible to other people in the community. However, if the owner shows up and wants to eject you, then you will need to defend against an ejectment action. Meet with a lawyer to plan your strongest defense and gather evidence that shows you successfully possessed the land adversely.

Steps

Part 1

Part 1 of 4:

Possessing the Land Adversely

1. 
   1
   Possess the land in a “hostile” manner. You have to make a “hostile” claim on the land. This means different things, depending on the state where the land is located. For example, “hostile” possession could mean:

   • You know you are trespassing. Some states define “hostile” as knowledge that you are trespassing on property. You trespass when you don’t have permission to enter the property.
   • You simply occupy the land. In most states, “hostile” simply means occupation.
   • You made a good faith mistake. In a few states, you have to possess the land as a result of a good faith mistake.
2. 
   2
   Stay physically on the land. You also have to occupy the land as if you owned it. For example, you move into a house and make necessary repairs or you move a trailer onto a plot of land and lay down a concrete pad.

   • You should hold onto documentation that you are treating the property as if you own it. For example, save receipts for repairs made and utility bills that you have paid.
3. 
   3
   Possess the land in an “open and notorious manner.” This is a legal phrase meaning, basically, that you aren’t hiding on the property and trying to avoid being found. Instead, you occupy the property in a way that you could be found out if the owner were to make reasonable investigation.

   • If you parked your car outside the house and are seen going in and out as if you owned the property, then you are probably occupying the property in an open and notorious manner.
4. 
   4
   Occupy the land continuously and exclusively. You can’t adversely possess land if you stop in for three months then leave for three months. You also can’t share possession with the owner or another person. Instead, you must occupy the land for a continuous amount of time, exclusively.

   • The minimum amount of time will differ, depending on the state. For example, in Alabama, you must possess the land continuously for 10 years. In Hawaii, by contrast, you must possess the land continuously for 20 years.
   • Many states also require that you pay taxes during this time period in order to qualify as “continuous possession.”
5. 
   5
   Check if you have a deed. In some states, you can only adversely possess land if you have a deed or other legal document related to ownership of the property. This document could be fraudulent or defective, but you nevertheless must have a legal document purporting to give you some right in the land. If you don’t, then you can’t adversely possess.

   • In other states, such as Kentucky, the amount of time needed to continuously and exclusively possess the land will be reduced if you have a deed. You will only need to have continuously occupied the property for seven years. If you don’t have a deed, then in Kentucky you must have occupied the land continuously for 15 years.
6. 
   6
   Refuse to leave. If the title owner shows up and asks you to leave, you should refuse. Remember that you have to possess the land continuously, so leaving because the owner tells you to could be proof that you aren’t possessing the land.

   • However, you need to leave if the police arrest you. Resisting arrest is a crime. Instead, leave peacefully and contact a lawyer.
   Advertisement

Part 2

Part 2 of 4:

Filing an Action to Quiet Title

1. 
   1
   Ensure you have the right to bring an action. When you bring an action to quiet title, you are asking a court to establish your legal rights in a piece of real property. In essence, you are "quieting" any challenges to the property's title. If you are successful, the previous owner will not be able to successfully eject you from the land you adversely possessed.

   • To be successful, you will have to prove that the previous owner's title to the property is somehow defective. In your case, you will tell the court that you have adversely possessed the land in accordance with your state's statute and therefore you should gain title to the land.
2. 
   2
   Complete the necessary court forms. Start your action by filling out the required court forms in your state. In general, you will be required to fill out a civil cover sheet, complaint, and summons. Together, these forms make up your lawsuit.

   • Your civil cover sheet allows the court to properly manage your case as it goes through the system. You will need to identify the parties, indicate that you are filing a complaint, state the property's value (i.e., the amount in controversy), and tell the court that you want them to quiet title in your favor.
   • Your complaint will lay out all of the legal and factual circumstances that lead you to believe your lawsuit will be successful. You will need to describe the real property at issue, state your cause of action by explaining you have adversely possessed the land, and ask the court for relief (i.e., provide you with a quitclaim deed).
   • The summons is a pre-drafted form that tells the defendant they are being sued and requests a response. All you need to do is fill in each party's name.
3. 
   3
   File your forms in the correct state court. Real property lawsuits are generally brought in state court because property laws are state laws. In addition, you will need to bring this action in the county where the real property at issue is located. When you file your lawsuit, take all of your original forms, along with at least two copies, to the courthouse and have them filed with the clerk of courts. When you file, you will have to pay a filing fee, which is often between $150 and $300. If you cannot afford the filing fee, you can ask the court for a waiver.

   • Once you have paid the fee or been granted a waiver, your forms will be stamped as 'filed" and the court will keep the originals. You will be given the two copies back. One of those copies will be yours to keep and the other will be served on the defendant.
4. 
   4
   Serve the defendant. When you serve the defendant, you are giving them a copy of your lawsuit so they can respond. If you fail to correctly serve the defendant, the court might dismiss your case. Therefore, it is important to serve the defendant properly and quickly. Service can be completed in many ways and, if you have the funds (usually $45), you can ask the sheriff to serve the defendant for you. You can also mail the lawsuit to the defendant in order to complete service.

   • Once service is complete, you will need to file a proof of service form with the court. This will indicate that the defendant has been properly notified of the lawsuit. Once the defendant responds to your lawsuit, a court date will be scheduled so your case can be decided.
5. 
   5
   Go to court. On the day of your hearing, bring copies of all of your evidence and other documents you have regarding the action to quiet title. The judge will hold a hearing and will ask you and the defendant to testify about the lawsuit. You will have to answer questions about how you adversely possessed the land and whether you meet all of the requirements of the adverse possession statute. The judge will ask the defendant whether they have any defenses to your claims.

   • The judge will review all the paperwork, and any testimony given during the hearing, and will make a decision regarding your case. If you win, you will be awarded a quitclaim deed, which gives you title to the property in question. In addition, if you win your quiet title action, the defendant will no longer have legal right to that piece of property.
6. 
   6
   Record your quitclaim deed. Once you obtain the quitclaim deed, you need to record it with your county's recordation office. When you record a real property document such as a deed, you are notifying the public of your rights. It is necessary to do this to ensure nobody tries to make adverse claims against the property. Record your deed as soon as possible after receiving it.
   Advertisement

Part 3

Part 3 of 4:

Responding to a Lawsuit to Eject You

1. 
   1
   Read the complaint. If the land owner wants to eject you, then he or she will file a lawsuit for “ejectment.” This is a lawsuit to remove you from the property. You will be sent a copy of the complaint filed and a summons. Read both.

   • The complaint will lay out the facts and circumstances surrounding the lawsuit. It will identify the person suing you as the “plaintiff” and you as the “defendant.”
   • The summons will tell you how much time you have to respond to the lawsuit. Make note of the date. If you don’t respond in time, then the plaintiff can get a “default judgment.” With this judgment, you basically lose the lawsuit without ever getting to defend yourself.
   • You might not want to wait to be sued. Instead, you could bring a lawsuit to get title to the land yourself. You can do this when you have possessed the land for a sufficient amount of time and the owner has never been around. For more information, see Claim Squatters Rights.
2. 
   2
   Meet with a lawyer. A lawyer can help you make your most convincing case possible. He or she can help you get your evidence in order and also draft court documents. You should schedule a consultation with a lawyer to talk about your case.

   • To find a lawyer, you can contact your local or state bar association and ask for a referral.
   • Also think about hiring the lawyer. You can certainly try to represent yourself, but it will be a lot of work. Also, the judge probably won’t cut you any slack because you are representing yourself, so you will need to learn court procedure, the rules of evidence, and attend pre-trial hearings. All of this takes a considerable amount time. If you hired a lawyer, then he or she can handle everything. At your consultation, ask how much the lawyer charges.
3. 
   3
   Draft an answer. You respond to the complaint by filing an “answer” with the court before the deadline. In the answer, you respond to each allegation made by the plaintiff. You either admit, deny, or claim insufficient knowledge to admit or deny each allegation.

   • Also remember to raise “adverse possession” as an affirmative defense in your answer. In effect, you are defending the suit by arguing that you are now the owner of the property under your state’s law.
   • You can have your lawyer draft the answer. Alternately, you could get a printed “fill in the blank” answer form from your court clerk.
   • For more information on answering, see Answer a Civil Court Summons.
4. 
   4
   File your answer. Once you have finished your answer, make several copies. Take the original and the copies to the court clerk. You have to file your answer in the same court where the plaintiff filed the complaint. Ask the court clerk to file the original answer.

   • You will probably have to pay a filing fee. Call ahead of time and ask the clerk the amount and acceptable methods of payment.
   • Ask the court clerk to stamp your copies with the filing date.
5. 
   5
   Serve your copy of the answer on the plaintiff. If the person has a lawyer, then serve a copy of your answer on the lawyer. You can generally serve your answer in the following ways:

   • Have someone 18 or older hand deliver the answer to the plaintiff. This person cannot be a party to the lawsuit. However, you could have a neighbor or colleague make hand delivery. You could also hire a private process server to deliver for a fee.
   • Mail the answer. In some courts, you can serve a copy of the answer by certified mail, return receipt requested.
   Advertisement

Part 4

Part 4 of 4:

Going to Court

1. 
   1
   Gather evidence. You will need proof that you have successfully possessed the property in order to win at trial. Be sure to gather evidence of each element you must prove according to your state law. Evidence can be in the forms of documents or witness testimony. Try to find evidence that helps you prove the following:

   • You took possession in a hostile manner. You can testify that you made a good faith mistake when you took possession of your property. You can also show the judge a copy of the deed you thought was authentic.
   • You possessed the property as if it were your own. Show that you paid taxes on the property or that you made the repairs a home owner would.
   • You possessed the property openly and notoriously. You should take pictures of the property and save evidence that you maintained the property as if it were your own. You can take pictures of fences you built, additions you made, or your regular mowing of the lawn.
   • You occupied the property continuously. You can testify as to how long you stayed on the property. You could also have a neighbor testify that you continuously lived at the property and didn’t share possession with anyone.
2. 
   2
   Co-ordinate with witnesses. You might need people to testify on your behalf. Good witnesses include neighbors who saw you on the land regularly and friends or family members who visited you there. Identify any people who have helpful testimony.

   • Remember that people can only testify as to information they have observed personally. Someone can’t testify as to gossip or what they heard second-hand.
   • For example, a neighbor who saw you coming and going from the property every day can testify as to what they saw. Their cousin, however, cannot testify that the neighbor told them you came and went from the property every day.
3. 
   3
   Deliver an opening statement. Your trial will begin with opening statements. The purpose is to give the judge a sneak peek of what evidence you will present. Think of the opening statement as a roadmap to the evidence.

   • You can mention witnesses in the order they will testify. Summarize what they will testify to, and always remember to say, “As the evidence will show…”
   • Avoid arguing in the opening statement. The only time you can argue is in your closing arguments.
4. 
   4
   Cross-examine the plaintiff’s witnesses. The plaintiff presents his or her witnesses first and will probably testify on his or her own behalf. There may be other witnesses. For example, someone might testify that you didn’t continuously occupy the land because you left for long periods of time. You will be able to cross-examine any witness who testifies for the plaintiff.

   • For tips on how to conduct a cross-examination, see Question Witnesses when Representing Yourself.
5. 
   5
   Present your own evidence. As the defendant, you get to present evidence second. You can have your witnesses testify. For example, you might want someone to testify that you were living continuously on the property.

   • You can also testify on your own behalf. If you have a lawyer, he or she will ask you questions. If you are representing yourself, then the judge may let you testify by giving a speech or by asking yourself questions and then answering them.
   • Remember that the plaintiff’s attorney gets to cross-examine all of your witnesses, you included. You might be nervous about this experience. However, you should remember to listen closely to the lawyer’s questions and ask that he or she clarify anything you don’t understand.
   • Also think before answering and always remain calm. Don’t let the plaintiff’s attorney rattle you.
6. 
   6
   Make a closing argument. At the close of evidence, you and the plaintiff can each make a closing argument. You want to tie all of the evidence together and show that you adversely possessed the land.

   • If you (instead of a lawyer) are making the closing argument, then remember to use exhibits. For example, if you are talking about a deed that you were given, then be sure to hold it up as you talk about it.
7. 
   7
   Await the verdict. If you had a jury, then the judge will read the jury its instructions and allow them to retire to deliberate. If you don’t have a jury, the judge will deliver the verdict from the bench.

   • Depending on the court, you may need to fill out a final judgment form after the judge or jury delivers the verdict. Ask the clerk if you do.
8. 
   8
   File your judgment with the Recorder of Deeds. If you win the lawsuit, then you will be awarded title to the property. You will need to get a copy of the judge’s certified final judgment from the court clerk and take it to your county’s Recorder of Deeds office.
   Advertisement

Expert Q&A

Search

Add New Question

Ask a Question

200 characters left

Include your email address to get a message when this question is answered.

Submit

Advertisement

Tips

• If you want a jury, then you should also probably have a lawyer. Jury selection is complicated, and presenting a case to a jury requires advanced planning. You also have to pay a fee to have a jury.
  Thanks

  Helpful0Not Helpful0
• In some states your adverse possession (in accord with pertinent laws) automatically results in "equitable title" to the property, or at least the portion that you have continuously and exclusively used for the statutory period. Once you have silently acquired title, you may occupy it or stop using it, as you wish, because it is "your property", even if the legal owner remains unaware of it or tries to enter your property.
  Thanks

  Helpful0Not Helpful0

Advertisement