We usually think of an uninvited guest on someone’s private property to be a trespasser. Trespassers don’t have rights, so why should an unwelcome guest who is living there have them?
Under common law, an individual may acquire valid title to land that does not belong to them if they meet certain requirements for possessing it, and the possession continues of over a period that is determined by state law. Called adverse possession, this seemingly obscure doctrine may come into play in any number of situations, such as:
- Unclear property lines leading to a fence or driveway jutting past the property boundary of a neighbor.
- A shed, dog run, or other structure built on a neighbor’s land.
- Unauthorized tenants living in a rental unit without the knowledge of the landlord.
Depending on the unique circumstances and where it occurs, there are different remedies for adverse possession. Residents of Delaware may want to find out more about what they can do if they make such an unexpected and unwelcome discovery.
What are the requirements for adverse possession?
For an adverse possessor to acquire title to property, the possession must be:
- Continuous
- Hostile
- Open and notorious
- Actual
- Exclusive
Continuous possession may exist through successive possessors who have obtained the deed to property from previous possessors. It is hostile in the sense that the owner has not given consent. It is open and notorious for all to see, actual in the sense that the owner may bring a cause of action, and exclusive in that the possessor does not share it with others.
Remedies for adverse possession
Property line violations are common among neighbors, and incursions such as a driveway, fence, or even a dog run are not unusual, especially if an old plat map or faulty deed was not clear. Adverse possession can also occur with the continuous use of a private road. In any of these circumstances, getting an easement as a use permit will clarify the owner’s property boundary.
If you have been inadvertently housing a tenant, leasing to that person will invalidate the hostile element of adverse possession. But whatever you do, watch the deadline for discovery and action, which is 20 years in Delaware.