Squatters’ Rights and Adverse Possession in Real Estate

By Janet Howard

Under New York Consolidated Laws, Real Property Actions and Proceedings Law - RPA § 501; and for the purposes of this article: 

Adverse possessor is a person or entity and is an “adverse possessor” of real property when the person or entity occupies real property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause of action for ejectment. 

Acquisition of title is when an adverse possessor gains title to the occupied real property upon the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules, provided that the occupancy, as described in sections five hundred twelve and five hundred twenty-two of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual. 

Claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register of the county, of the county where such real property is situated, and located by reasonable means. 

The best way to explain squatters' rights and adverse possession is with an example, and it has happened in real life. First, it's important to remember that these types of real estate laws are state-specific, so you need to check the laws in your state of interest. The example here is of the most accepted laws regarding squatters' rights and adverse possession. 

You have long-term objectives, and you buy a 40-acre parcel of unimproved land in a beautiful area, but pretty remote. You found it on vacation, and you didn't anticipate going back to that area often, if at all for the next few years. You're sitting on this investment, knowing that over time it appreciates in value, so it's a nest egg for your future retirement home. 

You had some neighbors in that area, but the few living there were several miles away. You did become acquainted and asked them to look in on your property from time to time. You have no idea whether they've done that or not, but you have other things in your life demanding your attention, so the land investment sits in the background of your life. 

One day you open the mail, and there is a legal notice that someone has filed an action to take possession of your future piece of retirement heaven. You call an attorney right away, and that attorney refers you to one in the state where you bought the property. You are amazed to learn that the claim on your land is legitimate. You have no right to refute it, as the squatter has met the requirements to take away your land without any reimbursement to you. 

Here Is What They Need to Do to Take Your Property 

Here are the common requirements: 

1. They must take over the use and possession of the land. It can be for their residence, a business, or both. 

2. Their use of the land must be open and obvious. This means that they're not hiding in a ravine or bunch of trees. They need to be in plain sight. 

3. They take exclusive possession, not sharing the land. This means no communal arrangements. 

4. There can be NO permission from the owners in any form. If you had knowledge of someone staying on your land and did nothing about it, you may still lose it to adverse possession. 

5. Their possession of your land must be continuous for the legally specified years. 

These are a lot of hoops to jump through, but it happens more than you may think. What is sad is that it's not that difficult to avoid this situation. If when you purchased this parcel you had contracted with someone, perhaps a neighbor or a real estate agent, to check your land every year or two, you could have avoided losing your retirement home. 

Simply by having someone go out and travel over the entire property taking photos to document no squatters, you would have covered your legal requirements to void their claim. However, if they find someone living or doing business on the property, have them inform you immediately. You can then retain an attorney to have them evicted. These checks are well worth the investment. 

When you're dreaming about that streamside retirement home years from now, take a moment to consider if you've taken the actions necessary to protect your ownership from squatters who are there because they know the law and are taking advantage of it. 

Legal Requirements for an Adverse Possession Claim to Land 

New York law requires the land to be used for at least ten years before the adverse possessor gains title. The adverse possessors’ claim or use of the land must be incompatible with the owner's claim and use of the land. The adverse possessor actually be using the land as if it was his or her own. 

When courts look at adverse possession claims, they apply a four-factor test. To qualify as adverse possession, the trespasser’s occupation of the land must be: 

  • Hostile 
  • Actual 
  • Open and notorious 
  • Exclusive and continuous for a certain period of time. 

Need Help? 

If you have this real estate issue, please do not take the law in your own hands. Get a FREE consultation. Ask the Lawyer. Call 855-768-8845.

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