Can My Neighbor Take
a Portion of My Property?
Arizona landowners need to
be wary of infringement upon their property in order to ensure that they do not
lose their land through an adverse possession
• This article was
published in the June 2010 issue of the Scottsdale Airpark News
• Special thanks to
Nussbaum Gillis & Dinner, P.C. attorney Andrea Landeen
for her assistance with this article
As a landowner, you may be surprised to learn that
a neighbor can occupy your land for a period of time and then gain legal
ownership of your land. If a neighbor is using your property, even a small
strip along the edge, you should be aware of the risk because that neighbor
may be able to acquire title to it through a legal doctrine known as adverse
In Arizona, a person is entitled to legal ownership of property if his occupation
of the property is hostile, actual, open and notorious, exclusive and continuous
for a period of 10 years.
In addition, even if a person cannot legally claim
ownership of your property, he may be able to gain the legal right to use part of
your property; this is called a prescriptive easement, the elements of which are
basically the same. The distinction between adverse possession and a prescriptive
easement is that adverse possession leads to acquiring actual ownership of the
disputed land, while a prescriptive easement leads not to ownership but rather
the right of continued use.
Arizona courts have defined
hostile use of land to mean that one must show 1) possession or occupation of the
land, 2) that they have a claim of exclusive rights to the land, 3) and denial of
title to the true owner by words or action such as continued use to the detriment
of that owner.
Actual, open and notorious
possession is another element. The person seeking to adversely possess the
disputed parcel must actually be in “possession” of the property, and treat it
as if he were an owner. This means there must be a physical presence on the
land. A person’s intent to possess the land is not enough for someone to make a
claim of ownership.
The words “open and notorious” simply mean that the
person’s use of the land must be obvious to anyone, including the true land
owner. The clear example is the neighbor whose fence or driveway is obviously on
The person must possess
the land exclusively and without interruption for the 10-year time period. In
order to meet the 10-year time period, it is possible to add or “tack” on the
years of use by your prior owner.
For continuous possession, the person cannot cease
using the property for a period of time, recommence using the property and then
include the time that it was abandoned. The use must be maintained continuously
for 10 years.
There are several steps
an owner can take to prevent a neighbor from gaining a legal claim to your
1. Grant Permission
One effective way
to thwart a possible claim for adverse possession or easement by prescription is
to give permission to use a portion of your land. To be safe, put the permission
in writing and obtain your neighbor’s signature as an acknowledgement.
2. Obtain Title Insurance
When you buy
a home or any kind of real property, you expect to enjoy certain benefits from
ownership, such as being able to occupy and use the property as you wish, to be
free from debts or obligations not created or agreed to by you, and to know that
you have the right to use all of your property. Title insurance is designed to
protect you from certain risks including possible claims of adverse possession
or prescriptive easements.
3. Hire An Attorney
If you believe that
a person may have a claim against a portion of your property under an adverse
possession or easement by prescription theory, see a lawyer. You need to take
steps to prevent losing ownership over the disputed portion of land by adverse