How can a land survey protect me from adverse possession?
While uncommon, many homeowners are shocked to learn that their property can be claimed under the laws of adverse possession in Texas. While not an easy task, as it can be a risk, getting a land survey is the first step to ensuring this cannot happen to you. While not a lawyer, there is little doubt that the first recommendation a lawyer would give is to get a land survey.
So, just what is adverse possession?
Adverse possession is a law that applies to real property. Real property falls under the definitions within real estate law. It is definined as a property that is immovable. Thus land, and anything attached to it, is considered real property.
Under the laws of adverse possession, the property can, in specific circumstances, transfer to another owner without the consent of the original owner. Thus the importance of knowing where your property line really is and assuring that your neighbors are not encroaching on said property.
What are the rules governing adverse possession?
The laws vary from state to state; however, there are certain commonalities.
1. The use must be “open and notorious.”
- Open and notorious basically refers to the face that the use must be open. Not hidden. For instance, someone could not go out and squat in a building you own and be sure not to be found when someone came to look. However, encroachment on your property from your neighbor’s addition of a room onto their house that extends over the property line would be open and notorious.
2. The use must be “hostile.” No, you don’t have to go into war over the property. Hostile basically means against the interests and without permission of the rightful owner.
- The above example of a room added on to your neighbors home encroaching on your property would fit this definition, as it would decrease space and thus the value of your property.
- If you have given permission for said use, this does not mean the definition of “hostile.”
3. The use must be exclusive.
- If you are able to and do use the land as well, this would not be exclusive use. One example of this might be a shared driveway. Your neighbor might have an easement but would not have exclusive use of the property.
4. The person to whom the property is being transferred must be paying taxes on the land.
- Even if the encroacher does meet these criteria, you have many years to prevent the transfer of your property under the rules of adverse possession. Depending on the specific circumstances, this can take anywhere from 3 to 25 years.
Preventing adverse possession with a land survey.
As you can see by the above elements of adverse possession laws, knowing just where your property ends, and your neighbor’s begins is essential. Property lines can become blurred over time. More accurate survey techniques in practice now help you distinguish your property line. Protect your rights with a land survey. And, if there is a question, consult an attorney.