Trespassers can acquire title to another’s land SanTan Sun News

Trespassers can acquire title to another’s land

January 25th, 2021 SanTan Sun News
Trespassers can acquire title to another’s land
Community
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By Ben Gottlieb
Guest Writer

Arizona recognizes the legal doctrine of adverse possession.

The doctrine is counterintuitive and seems to run counter to the values we were all taught in elementary school.

It goes something like this:  if a person utilizes someone else’s land – land that is not owned by the trespasser, land that the trespasser did not purchase or contribute funds towards and land of which the rightful owner did not provide permission for the trespasser to occupy – after a certain period of time, the trespasser becomes the true owner of the land.

The original owner loses all rights in the property occupied by the trespasser. So not only is the original owner prevented from evicting the trespasser, but the trespasser has the ability to formally get title to the property through the court system.

That’s right:  the law in Arizona, as in many other states, actually rewards someone for trespassing on someone else’s property. It punishes the actual title owner by taking away the owner’s rights to the land without compensation. 

How can this be legal and constitutional, and what is the rationale for having law like this?

In a nutshell, the reasons for the law can be boiled down to policy that favors productive use of land and stability in property rights, and disfavors sleeping on legal rights.

Adverse possession has historical roots going back hundreds of years to England, where statutes of limitations were put in place. If the true title owner did not assert rights in the property within the appropriate period of time, the occupier would become the lawful owner of the land.

This law addressed concerns arose over people losing land that they occupied for many years, only to have the true title owner assert rights in the property many years later.

This rule of law also afforded property-occupiers with a certain degree of confidence that after making productive use of land for many years, but lacking evidence of title which might be difficult to obtain, that no one could eventually rob them of their investment in the land.

Today, in Arizona, lawsuits are filed each month by a trespasser (often termed an “adverse possessor”).

The adverse possessor must prove in court that he or she occupied land, without permission of the original owner, for a period of at least 10 years.

An adverse possessor may assert an adverse possession claim over land, even if he or she possessed the property under the mistaken belief that it was their own.  This type of situation often arises in boundary line disputes.

Arizona also recognizes the “tacking” rule.  This means if an adverse possessor occupies a portion of his or her neighbor’s land, without permission from the neighbor for five years, and then sells the property to someone who continues to occupy the neighbor’s land for another five years, the adverse possessor could go to court and provide evidence to satisfy the 10-year requirement.

While the doctrine of adverse possession has historical roots dating back to English law, its applicability remains relevant to this day.

If you have any concerns or questions over your property boundaries or whether you might need to assert your property rights, you should act sooner than later.

Chandler resident Ben Gottlieb is a partner and co-founder of MacQueen and Gottlieb PLC, the state’s top real estate law firm. Reach him at 602-533-2840   or   email him  at ben@mandglawgroup.com.

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