The Consideration of Time in Adverse Possession

The Consideration of Time in Adverse Possession

One of the core underpinnings of our system of real property is that when an owner of property is divested of some portion of that property, they will naturally want to receive some form of compensation in exchange. Which is why some people find themselves shocked to learn that Arizona honors the concept of “adverse possession”—sometimes referred to colloquially as “squatter’s rights.”

Adverse possession is a property doctrine under which a real estate owner legally loses the right of ownership to their property without receiving any compensation whatsoever. Or, put another way, it’s a way for someone to take legal ownership of another person’s property without ever having to pay the original owner for it.

It works this way: Someone trespasses on the property of another person. Generally the owner of this parcel of property is neglecting it in some significant manner—most cases of adverse possession occur because the putative owner has not noticed the trespass. The possession the trespasser takes is “adverse” in the sense that the taking of ownership is done against the interests of the listed title holder.

The trespass being done must be “public,” or “open and notorious”—meaning the trespasser does things like paying property taxes and otherwise behaving as though they have the right to own the property legitimately, rather than using it in secret. It must be continuous over the period of time concerned (more about this below). It must be exclusive—meaning the trespasser is not only using the property but is keeping other people from using it, as though they possess it. And it must be “hostile”—the trespasser cannot have been using it under some sort of license or lease made with the original owner.

But how long does this take? States generally statutorily determine the amount of time a trespasser must openly trespass before they can make a claim for adverse possession. Some states make this length of time significant—up to 20 years.

But Arizona has one of the shortest periods of trespass before this claim can be made: a mere two years.

The concept behind the doctrine of adverse possession is that the law favors active, productive use of land. Neglected land, which is not “improved” while being owned, is considered to be in a situation making an inferior use of that land as compared to active and productive ownership. So if someone is doing right by a parcel of land—including paying taxes on it—while its owner is ignoring it completely, the law gives weight to that usage as a method by which to “clear” title to the land.

Naturally, the best course of action when encountering a claim of adverse possession on real property one owns—or, for that matter, to claim adverse possession on property to which one is legally entitled—is to consult with a qualified attorney. Moreover, if you’re looking to purchase real estate in Tempe or anywhere else in the state of Arizona, Provident Law’s attorneys stand ready to help. We structure, negotiate and document a variety of real estate and financing transactions, such as leases, purchase and sale agreements, loans and development agreements for a variety of commercial and residential projects—and we litigate over issues of ownership when necessary. Contact us for more details.

Christopher J. Charles is the founder and Managing Partner of Provident Law ®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS ® (the “AAR”). Mr. Charles holds the AV ® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.

Christopher is a licensed Real Estate Instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.