Is It Possible To Legally Lose Your Land Without Payment In Arizona?
In Arizona it is possible to legally lose your land without permission or payment through a process called adverse possession. Adverse possession is a way of acquiring land by possession. A successful adverse possession claim has 6 elements that must be fulfilled for ownership of the land to be transferred away from the original owner to the possessor. They are; (1) actual possession, (2) exclusive possession, (3) open and notorious possession, (4) adverse and hostile possession, (5) continuous possession, and (6) for the statutory period. The burden of proof lies on the person claiming to take possession of the land to show that all of the elements have been met for their adverse possession claim. In Arizona, the maximum amount of land that may be adversely possessed in one claim is 160 acres.
1) Actual Possession
Actual possession means that the person possessing the land is using the land in a manner that is similar to how a reasonable owner would use the land. The use of the land must be consistent with the character, location and nature of the land. For example, if one were to adversely possess some land in the woods, they may potentially use the land as a place to collect firewood from. The character, location and nature of the woods may be such that a reasonable owner may only use the land for that purpose. However, that is an extreme example. Usually the possessor must show a more substantial use of the land, such as actually living on the land.
2) Exclusive Possession
Exclusive Possession is pretty simple. In an adverse possession claim, the possessor cannot share the land with the owner of the land or with the public. Exclusive possession can get a little tricky if there are co-owners to the land in question. For example say that Jack and Jill co-own a farm. They both live and work on the farm. If Jack wanted to adversely possess the land from Jill, he must completely oust Jill from the land. If Jill is not completely ousted from the land, she may just look like a regular hands-off type of landowner.
3) Open and Notorious Possession
For the open and notorious possession element, the possessor must be visible and obvious with their use of the land. The possession must be in such a way that if the landowner made a reasonable inspection of the land, they would be aware of the potential adverse possession claim. For example, if a potential adverse possessor is living in a hidden tree house or tunnel, their possession might not be open and notorious. It is pretty easy to imagine a scenario where a reasonable owner searches their land but is not able to see a hidden tree house or tunnel. Instead, if an adverse possessor lived in a house on a plot of land, their possession would definitely qualify as open and notorious. That is because if the landowner made a reasonable inspection of the land, they would easily be able to tell that someone is using the house.
4) Adverse and Hostile Possession
For the adverse and hostile possession element, the person attempting to take possession of the land under adverse possession must have come onto and be staying on the land without permission from the owner. One who is merely renting the land cannot adversely possess the land since they are using the land under the permission of the landowner. If the original landowner claims that they gave permission to the adverse possessor, the original landowner would have the burden to show that permission was given to the adverse possessor. Sometimes permission to use the land may be inferred. For example, suppose that Jack and Jill own a farm. Jack lives and works on the farm whereas Jill lives in the city and never visits the farm. If Jack were to try to adversely possess the farm from Jill, a court would likely find that Jill gave implied permission to Jack to live and work on the farm without her.
Additionally in Arizona, the trespasser must have a “claim of right” while possessing the land. “Claim of right” basically means that the claimant much have some sort of a claim of ownership to the land. “Claim of right” is usually a small hurdle to cross in an adverse possession claim.
5) Continuous Possession
Continuous Possession is exactly what it sounds like. For an adverse possession claim, the possessor must have continuous possession of the land at issue. They are allowed to leave for vacations or business trips; however, the possessor must intend to return to the land. Continuous possession is judged by how a reasonable owner would use the land. For example, if one were to adversely possess a cabin in the woods, the adverse possessor may potentially only use it a few months a year as a vacation home. It is permissible for them to do so since that is how a reasonable owner may use the cabin.
6) For the Statutory Period
The adverse possessor automatically gets the rights to the land when their possession reaches the required length of time. The length of time required for a valid adverse possession claim in Arizona depends on the nature of the occupation of the land. Under A.R.S. § 12-523, if the land is possessed under color of title, the time required for a valid adverse possession claim is only 3 years. Entering the land under color of title means that the adverse possessor is entering the land under a defective title. Under A.R.S. § 12-525, if the adverse possessor has a recorded deed (that is not forged) and is paying taxes on the land, the time required for a valid adverse possession claim is 5 years. Other adverse possession claims fall under A.R.S. § 12-526, which calls for 10 years of possession for a valid claim.
The statutory length does not necessarily have to be reached by a single person. A chain of possessors may combine their time (also known as “tacked”) if there is privity between them. Privity is a legal relationship between parties. For privity to exist, there must be a legal transfer of the land from the previous possessor to the new possessor. For example, say that under the circumstances an adverse possessor must reach 10 years for a valid adverse possession claim. Jack is the first adverse possessor of some land. He fulfills all the elements except for the time since he is only on the land for 6 years before he dies. He then leaves the land to Jill through a will and then Jill moves onto the land. Jill only has to stay on the land for 4 years to adversely possess the land. That is because there is privity between Jack and Jill through the will and their combined time on the land would reach the 10 years required for an adverse possession claim.
The time may be interrupted through a lawsuit. In addition, the time may be stopped under certain circumstances. Examples include the landowner suffering from mental disability or if they are drafted into the military.
While we are talking about adverse possession, let us quickly go over prescriptive easements. Easements are legal rights to use someone else’s land for a specific purpose. While adverse possession allows one to take ownership of the land of another without any sort of exchange or permission, prescriptive easements allows one to use the land of another without any sort of exchange or permission. A prescriptive easement is an easement over land that was earned through regular use of the land. The elements for a prescriptive easement claim are (1) actual use (2) open and notorious use (3) hostile and adverse use (4) continuous use, and (5) for the statutory period. The main difference between adverse possession and prescriptive easements is the lack of an exclusivity element since the landowner is also using the land. Neighborly accommodations block prescriptive easement claims because the person attempting to gain a prescriptive easement would not be using the land adversely. Here is an example of a prescriptive easement. Jack is cutting through Jill’s land to reach his own land. He does so regularly and without Jill’s permission. If Jack does this long enough he may be able to have a prescriptive easement on the land. Once he has the prescriptive easement, Jill cannot revoke Jack’s use of part of Jill’s land to reach his own. Of course Jill could stop the potential prescriptive easement claim if she gives Jack permission to cut across her land.
Is there a potential adverse possession claim pending against you? It is important that you take action as soon as possible so you can protect your land and regain your peace of mind. Our Mesa Real Estate Law attorneys & Gilbert real estate lawyers may be able to help you. Visit Denton Peterson, P.C. or call 480-325-9900 to set up an appointment.
1930 N. Arboleda, Suite 200
Mesa, AZ 85213