YOU MAY BE GIVING AWAY YOUR LAND AND NOT KNOW IT


By Calvin J. Platten Jr.

How can you give away your land without knowing it? Well, there is two ways that this is possible. It can be done under the legal theories of adverse possession, and adverse possession’s sneaky relative, prescriptive easement. The purpose of this article is to provide you with the legal requirements of both adverse possession and easements by prescription, to allow you to assess whether or not your neighbor or someone else could take control of all or part of your land. Also, I would like to provide you with a brief explanation of what a quiet title action is and how it can help you protect your interest in your land.

I think most people are more familiar with the theory of adverse possession than prescriptive easements, but I will start with a synopsis of adverse possession because adverse possession can actually result in someone taking title to part or all of your land. Once someone takes your land by adverse possession they can actually treat you as a trespasser and prevent you from using the property.

In Arizona, in order for a party to take title to your land by adverse possession, he or she must meet four factors. Possession of your property must be exclusive, open and notorious, adverse, and continuous. To prove each factor a party must do the following:

Exclusive – a party must show that he or she used your property exclusively and that he or she actually entered the property. For example, a party simply stating that he or she has used your property as the basis for an adverse possession claim is improper. The party must actually prove that he or she entered and used your property. Further, using your property along with others does not entitle a party to make a claim for adverse possession. The party must prove that he or she used your property while excluding others from using your property.

Open and Notorious – A party’s possession must be seen. In order for a party’s possession of your property to be considered as justification for a claim for adverse possession, the party’s possession must be appropriate to the type, size, and use of the land. In other words, a party can not lay claim by adverse possession to 200 acres of farm land by placing a tree stand for hunting on one tree in the woods on the corner of the land. Hidden possession is not possession that satisfies the standards for adverse possession in Arizona.

Possession must be Adverse – A party’s possession must be adverse to your claim to the property. If you have given a party permission to be on your property, they cannot claim that they have obtained title to your property by adverse possession.

Continuous – A party’s possession must be continuous for 10 years. If a party only entered your property occasionally or only used the property for 3 years and then did not use it for the next 4 years and then went back and used it for 7 years he or she does not have a claim for adverse possession. However, the requisite 10 years can be established by the theory of tacking. Tacking is the adding together of successive adverse possessors. If Adverse Possessor 1 possesses your land for 6 years then sells it to Adverse Possessor 2, who possesses it for 4 years, Adverse Possessor 2 may claim title to your property by adverse possession by adding (tacking) his claim to Adverse Possessor 1’s claim.

In the simplest sense prescriptive easements in Arizona are an extension of acquiring the title to real property by adverse possession. However, after meeting the requirements necessary to satisfy a claim for an easement by prescription a party does not get title to your property, he or she merely gets an easement across your property and the prescriptive easement cannot be greater than the party’s use that established it. Therefore, if a party drives his or her station wagon across a specific portion of your property for 10 years he or she may have an easement by prescription that grants him or her the right to drive his or her personal vehicle along the same route across your property. You cannot block the party from driving across your property, but he or she cannot expand the easement and use the easement for commercial purposes, for example, or claim any ownership interest in any portion of your property.

The only way a party can acquire an easement by prescription across your land is by 10 years of continuous use. During that time, the party’s use of the land must be continuous, open and notorious and hostile.

The requirements for continuity with regard to prescriptive easements are identical to the requirements for continuity for adverse possession, described above. A party’s use of your property must be continuous for 10 years to establish a prescriptive easement. This continuity, however, can be established by tacking, just as it can be in the case of adverse possession.

Hostility can be established in the case of easements by prescription in the same manner that adversity is established with regard to adverse possession. A party must prove that you did not give them permission to use your land to establish an easement by prescription. If a party comes to you and requests you to allow him or her to drive across a portion of your property for 2 years to construct an addition on his or her home, those 2 years do not get added into the 10 years necessary to establish an easement by prescription.

Establishing open and continuous use of your property may seem quite a bit easier for a party with regard to obtaining a prescriptive easement than obtaining title to your property by adverse possession, but the theories are nearly identical. To obtain a prescriptive easement, a party’s use of your property must be seen. The party must establish that his or her use was appropriate to the type, size, and use of the easement he or she is trying to obtain. Case in point, if a party wants an easement by prescription to drive heavy machinery across your property, then he or she needs to drive heavy machinery across your property. Walking across your property for 10 consecutive years may give a party the right to an easement for a walking path across your property, but it certainly does not give a party the right to drive heavy machinery across your property.

One critical point to note concerning prescriptive easements is that to maintain a claim for an easement by prescription a party does not have to prove that his or her use of your property was exclusive. In other words, if your neighbor continually drives up your driveway along with you to access his or her property, he or she could establish an easement by prescription along your driveway. This means, that if you ever decide to move your driveway to a new location and block your current driveway you cannot do so because your neighbor has a right to use it.

The above information should provide you with a basic outline of the legal theories of adverse possession and prescriptive easements. If you suspect that a party may make a claim against your property under either of these theories you can be proactive and protect you interest in your property by filing what is referred to as a quiet title claim. A quiet title claim is a lawsuit where you seek a declaration from the court determining that no other party has any interest in your property. To determine if you need to file a quiet title claim or prepare a quiet title complaint, I suggest that you contact an attorney specializing in real estate issues.

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