What is Adverse Possession?

What if I told you that someone could steal your property out from under you—without paying for it? In general terms, adverse possession works like this: If someone trespasses onto another person’s property openly, and uninterrupted, for a period of 18 years, the person who has a deed to the property can no longer sue to stop the trespasser. As a consequence, ownership of the property passes to the trespassing party.

It sounds strange, but the most common instance of adverse possession happens when a fence gets improperly placed. Say, instead of erecting a fence on the property line, the owner places it a few feet onto their neighbor’s land. Of course, no one thinks anything of it until years later—say, 18 years later, when the owner sells the house and a land survey is conducted. At this point, the fence has become the agreed-upon boundary line.

Of course, it isn’t that simple in real life: According to the law, the claimant’s possession of the property must have been “hostile, actual, exclusive, adverse and uninterrupted” for the 18-year period; likely, each of these requirements will have extensive legal baggage and create difficult proof problems for a claimant.

 According to legal doctrine, the elements of adverse possession a trespasser must prove:

• “Hostile,” meaning against the right of the true owner’s legal title and without permission. This does not mean you have to be mean about it—merely that you are infringing on a property right that isn’t yours will do.
• “Actual,” meaning there must be proof that you are exercising control over the piece of land. Often, this is done with fencing or signage, but it could be done by building a structure on the property or by paying the property taxes on the parcel.
• “Exclusive,” meaning that, in some form, the possession of the property must be only the trespassers.
• “Open and Notorious,” meaning that a trespasser is using the property as the real owner would. This can be achieved by not hiding the occupancy, or it being known in the community that the property is theirs.
• “Continuous” for the period set by state statute, which is generally 18 years in Colorado.

It should be noted that, in 2008, a court held that the adverse possession claimant must have had a good-faith belief of actual ownership of the property. Also, under the 2008 legislation, the evidence in support of an adverse possession claim must be “clear and convincing”—a higher standard than the “preponderance of the evidence” standard usually applied in civil lawsuits.

If you are in a position of losing your property due to a trespasser, or if you have held a property for years that may not be entirely yours, you should contact a reputable and experienced attorney to settle any disputes going forward. For more information on this area, check out our overview of real estate laws.