Move your feet, lose your seat…
How do “squatter’s rights” really work?
The legal term for squatter’s rights is adverse possession. According to Wikipedia, “adverse possession is a legal principle in the Anglo-American common law under which a person who does not have legal title to a piece of property—usually land (real property)—may acquire legal ownership based on continuous possession or occupation of the property without the permission of its legal owner.”
Adverse possession, on its surface, seems counter to property rights that we, as a nation, hold dear; however, it has not only a historical significance, but also a modern one!
A little history
Adverse possession is much older than most people realize. The earliest mention of the concept dates back to about 2000 B.C.E. in the Code of Hammurabi, which explained that if a man left his house, garden, or field and another person possessed and used it for three years, the newcomer retained the land. Ancient Romans believed a person who possessed land nurtured the spirit of the land and gained a greater “ownership” in the land than the title owner.
Adverse possession law developed in the United States during the Colonial and Revolutionary periods. American courts and legislatures based adverse possession laws off of England’s doctrine of adverse possession. Initially, as a nation, the concept of adverse possession supported the national objective of our developing nation. As the country grew and expanded, it was vital that lands be settled, tamed, farmed, or put to otherwise productive uses. Even into the industrial age, settlement and development were high priorities to society and adverse possession furthered those goals.
In Pennsylvania, among other requirements, the “squatter” must use the land for 21 years. As of 2009, only Louisiana and New Jersey had statutory time periods longer than Pennsylvania. States such as Montana, Nevada, California and Idaho have time periods of only five years. Part of the reason for Pennsylvania’s especially long-time requirement is due to its history as one of the original colonies. The Pennsylvania Legislatures met in 1705 and 1785 with the intent of making it possible, but difficult, for settlers expanding into Western Pennsylvania to successfully claim a right to lands of the wealthy landowners of that time.
How does it work?
In Pennsylvania, to succeed in a claim for adverse possession a trespasser must prove actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of property for (in most cases) 21 years.
Each of these elements must be proven in a court of law and each case will be unique. Actual possession means essentially the trespasser must treat the land as if it were their own in a way that is “consistent with the nature of the property.” For example, actual possession may be established by cultivating the land, making improvements, maintaining a fenced-in lawn, doing yard work, planting and tending to a garden, or building a shed.
Exclusive possession means that possession should be characteristic of a true owner’s use to the “general exclusion of others.” The trespasser cannot share possession with the true owner or third parties. Hostile and adverse simply mean without the owner’s consent. This is why tenants cannot bring adverse possession claims; they have permission to occupy the property.
To bring an adverse possession claim, the trespasser would file a suit to quiet title action. This lawsuit would require the true owner to file an ejectment action against the trespasser. Once the ejectment action is filed, the trespasser would utilize the adverse possession defense to prevent the ejectment and be granted title to the property. As you can see, this is definitely a job for lawyers and this is a very simplified description of the process.
To avoid a claim of adverse possession, owners should clearly establish property boundaries, often through a survey. Regular inspection of the property will prevent trespassers from making use of the property. Permission also prevents adverse possession claims. Giving a trespasser a lease or license to occupy or use the property is a simple way to prevent adverse possession issues.
Adverse possession for the modern world
Adverse possession, traditionally seen as a negative aspect of property law, has gotten a facelift in recent years. The City of Philadelphia was the scene of a movement to reduce the statutory 21-year timeframe to 10 years. This movement was successful and culminated in the signing of House Bill 352 in 2018.
The goal behind this reduction in timeframe was to help remedy “murky titles” and abandoned properties. In 2004, approximately 10% of Philadelphia properties were abandoned. In addition to abandoned properties, many properties were occupied by heirs of the original owners, but they never filed proper documentation to formalize their ownership. Government and non-profit organizations exist to help clear up these title issues, but most people could not show 21 years of occupancy.
The Garden Justice Legal Initiative helps organizations secure possession of garden plots. For example, New Jerusalem, a residential addiction recovery community, took over vacant lots in the 1990s and turned them into fruit and vegetable gardens. In 2018, they were successful in their adverse possession claim to the garden plots.
House Bill 352 reduces the period of time that claimants are obligated to wait before bringing an action to acquire title through adverse possession from 21 years to 10 years for properties of less than one-half an acre. This law is designed for congested urban areas where vacancy and abandonment are high. This revision to the long-standing law helps prevent and reduce urban blight, encourages pride of ownership and increases urban property values and quality of life.
Adverse possession is a fascinating area of law. Squatter’s rights never fail to elicit strong opinions and reactions. I know when I was little, I often fell victim to the “move your feet, lose your seat” concept. I never knew it had actual implications in the real estate ownership world. Best advice for property owners? Use it or lose it.