In Arizona and other states, the adage “possession is nine-tenths of the law” can become a reality when real property is controlled or used by someone other than the true owner. Possessing real property – whether acting as the owner of the property or simply using someone else’s property without permission – can cause the permanent transfer of legal rights in the property to the possessor or user. This occurs in the form of “adverse possession” and “prescriptive easements.”
Through adverse possession, legal ownership of property is permanently transferred from the original titleholder to the possessor of the land as a result of the possessor occupying the land and acting as if he or she were the owner. While the initial possession could be intentional, it frequently occurs through an honest mistake, such as misunderstanding the location of property lines when building a fence or improvements and as a result placing the improvements over the boundary line. Under Arizona law, adverse possession occurs where there is actual possession of the property, the possession is open and notorious, hostile, under a claim of right, and was exclusive and continuous for at least ten consecutive years. This means that the possessor must have an actual physical presence on the land and treat is as if he or she were the owner. To be open and notorious, it must be obvious to anyone who reasonably investigates, including the true owner, that the possessor is on the land and acting as the owner. The possessor must have exclusive possession and cannot be sharing the property with the owner or with a third-party. The ten-year period of continuous possession can be met by tacking an earlier possessor’s adverse possession of the property to the current possessor’s time in possession. In certain circumstances where the possessor is paying the taxes and claims ownership under a recorded deed, the ten-year period is reduced to five years of possession.
A prescriptive easement transfers the right to use property that is owned by another, but title to the property remains with the original owner. To establish a prescriptive easement requires open, notorious, hostile and continuous use of the land for a ten-year period. Unlike with the full transfer of title through adverse possession, a prescriptive easement does not require exclusive use, and thus the land may still be shared with the owner. The requirement that the use be “adverse” will not be met and no easement will result if the land was used under the permission of the property owner. The ten-year period of continuous use can be met by tacking an earlier user’s adverse possession of the property to the current possessor’s time in possession. Also, the Arizona Supreme Court has recognized that because community standards may differ between rural and urban areas, a use which is adverse in an urban or suburban setting might not be considered adverse in a rural area. A prescriptive easement can create permanent easement rights, but the scope of the prescriptive easement is limited by the way in which the land was used to acquire the easement. For example, if a person establishes a prescriptive easement after walking across the corner of their neighbor’s property for the required period, the scope of the resulting easement will be limited to walking across the same corner that was previously used, but would not give the easement holder any right to drive a vehicle across the same corner or to walk across any other part of the property.Adverse possession and prescriptive easements both require that the possession or use be adverse to the owner. If the owner has given actual or implied permission for the use of the property, then the permitted use will not result in adverse possession or a prescriptive easement. Also, the possession or use must be continuous for the entire prescriptive period. If the owner has sufficiently interrupted the adverse possession or use, then the continuous use time period for establishing adverse possession or a prescriptive easement would reset.
If the adverse period has been met, steps should be taken to document and record the transfer of title or establishment of an easement, either of which may require an action to quiet title. Although a person’s possession or use may be sufficient to establish transfer of title by adverse possession or a prescriptive easement, the possessor can lose those acquired rights in the land if they do not timely take steps to establish and record their adverse possession or prescriptive easement.
Many boundary line and easement disputes involve litigation to determine the rights and obligations of the affected land, including the existence, location, and scope of the claimed easement or extent of the adverse possession. Such disputes can often be minimized or avoided altogether by ensuring that property rights are monitored and protected, and easements are accurately described. Before purchasing property, buyers should carefully review title reports and physically inspect the property and consider what rights might be claimed by others that are not in the recorded documents.
Whether facts are sufficient to constitute adverse possession or a prescriptive easement depends on the particular circumstances of each case. The lawyers at Mesch Clark Rothschild can help you evaluate whether adverse possession or easement by prescription applies in your situation.
