Deciphering Adverse Possession

Christopher J. Charles, Esq. and Philip A. Overcash, Esq.
Attorneys, Provident Law

Legal disputes over property can take various forms. In most cases in which such disputes arise, especially with a neighbor, the owner may be fully aware of a dispute and can take action to resolve the problem before the owner’s property rights are taken. In other situations, however, the neighbor may be able to claim an ownership interest in the disputed property if the owner is not diligent in protecting their rights.

Such is the case with adverse possession, which is the legal concept in which your neighbor (the “squatter”) can acquire legal title to your property by using it as their own for a prescribed period of time. Take, for example, a situation where your neighbor erects a fence which encroaches over a portion of your property. Irrespective of whether you are aware that the offending fence encroaches onto your property, if you allow the encroachment to persist for a period of ten years or more, your neighbor may have a claim for adverse possession of that piece of your property.

Under Arizona law, a party claiming adverse possession has the burden to show that his or her possession was [1] hostile; [2] exclusive; [3] actual; [4] open and notorious; and [5] continuous for the statutory period of ten years. A.R.S. §§ 12–521, 12–526.

As a general rule, enclosure of the subject property coupled with the claimant’s mere general use of the property within the enclosure is sufficient to prove adverse possession without requiring proof of other specific acts that would “fly the flag” over the disputed land, but only if the enclosure is complete.

To prove hostility, the adverse claimant must claim exclusive right to the land and do so in such a way to “den[y] (by word or act) the owner’s title.” Rorebeck v. Criste, 1 Ariz. App. 1, 4, 398 P.2d 678, 681 (1965) (finding that the existence of fence was a visible indication of a possession hostile to the defendants and to the world). The possession must be hostile, not only as against the true owner, but as against the world. An interesting wrinkle in Arizona is that your neighbor need not actually be aware that their fence is encroaching on your property, and they may be able to claim adverse possession of your property even if they built the fence over your property by mistake. However, if you became aware that the offending fence encroached on your property but gave the adverse claimant permission to do so, that would destroy the “hostile” component of the use and therefore preclude an argument for adverse possession.

Generally, continuity of possession does not mean that the adverse possessor must occupy every square foot of the land every moment. It is sufficient that the use he makes of it be an actual use suitable to the nature of the land, or the use an owner would make of his identical land. In the case of your neighbor building a fence over your property, that prong is satisfied.

What happens if your neighbor sells their property? The law says that “’[p]eaceable and adverse possession’” need not be continued in the same person, but when held by different persons successively, there must be a privity of estate between them.” A.R.S. § 12-521(B). Thus, Arizona’s “tacking” doctrine permits one claiming title by adverse possession to add his period of possession to that of a prior adverse possessor or possessors in order to establish a continuous possession for the statutory period. Furthermore, under A.R.S. § 12-521(B), a tenant can adversely possess property on behalf of the landlord.

So how should you respond if you determine that your neighbor is encroaching on your property? The first step is to notify your neighbor and request that they remove the encroachment. In some cases, that may resolve the problem. If for some reason that is not practical, you may demand compensation for the value of the affected piece of your property. Otherwise, you may need to hire an attorney to send a demand letter or to file a civil lawsuit for quiet title action to protect your property rights.  Per A.R.S. §12-1101, attorneys fees and costs are generally recoverable to the prevailing party in quiet title actions as long as certain steps are properly complied with.

In any of the above scenarios, knowing your rights before it is too late may be the only way to prevent your neighbor from knowingly (or even innocently) taking legal title to your property.  If you or someone you know has a question regarding a boundary dispute or any other real estate matter, please call our office today to schedule a meeting with Philip Overcash or Christopher J. Charles.

Philip A. Overcash is an Attorney with Provident Law®.  Mr. Overcash is an Attorney practices in the areas of complex commercial and real estate litigation. He has successfully represented numerous international, national and Arizona-based corporations and individuals, government entities and insurance companies in a wide array of legal disputes involving real estate, contracts, construction defects, insurance coverage and bad faith, employment law, trademark and trade secrets, and appeals. Philip is admitted to practice in Arizona’s State and Federal Courts, and he is a Member of the Arizona State Bar Association and Maricopa County Bar Association. He can be reached via email at Philip@ProvidentLawyers.com or at 480-388-3343.

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”).  He is also 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 from 2011-2015 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.