Parade of Homes Real Estate Magazine, June 2023

Squatter’s Rights: a Primer on Adverse Possession

By - Diana Brazeale

Real estate that is long neglected or abandoned sometimes ends up in the hands of a new owner through a lawsuit for adverse possession. A party in possession of real estate claiming title by adverse possession must prove five elements: that the possession is 1) hostile and under a claim of right, 2) actual, 3) open and notorious, 4) exclusive, and 5) continuous for a period of ten years. All of these elements have specific meanings and they all must be present at the same time.

Possession that is hostile and under a claim of right does not entail ill will toward the record owner, but rather requires that the claimant enter and occupy the real estate with the intention to possess it as his own, with a belief that his right to do so is superior to that of the record owner.

Actual possession means that the claimant must physically exercise dominion over the real estate, such as by changing the locks on an abandoned home or by fencing an adjoining lot.

A claimant’s possession of real estate is open and notorious when the record owner of the property knows or should know upon a reasonable inquiry that the claimant is in possession of it. For example, a claimant who openly squats at a property belonging to another is possessing it an open and notorious manner. Another example of open and notorious possession occurs when the claimant pays the annual real estate taxes on the property and arranges to receive the tax bill.

Exclusive possession means that the claimant is holding the property for himself, and that he is excluding the record owner from

possession of the property. A homeowner who possesses and maintains an adjoining lot so that the lot appears to be part of the property on which his home sits is exercising exclusive possession.

Finally, a party claiming adverse possession must prove that the first four elements have been present, uninterrupted, for a period of ten consecutive years. However, the ten years of possession need not all be by the same person. The claimant can tack his period of possession to that of his predecessor to satisfy this element. For example, if John Doe adversely possesses a property for six years and then turns over possession of the property to Mary Roe, Mary need only satisfy the elements of adverse possession for another four years to able to gain title to the property.

Absentee owners of real estate should be aware of adverse possession and take steps to protect their property. If you do not receive a real estate tax bill, inquire immediately. If your vacation home is unoccupied during the off season, consider hiring a caretaker to keep squatters at bay. If the neighbor next to your lot is planting his garden on your property, do not wait for him to stop. It is very important to act promptly to protect your rights. If you think you have a claim for adverse possession or that someone else has an adverse possession claim on your property, call the number at the bottom of this article.

Diana Brazeale is a real estate attorney and the owner of Brazeale Law Firm, LLC in Branson, Missouri. She has twenty-five years’ experience in the practice of law. She can be reached at (417) 334-7494