Adverse Possession and Easements

Adverse possession

Typically, the possession “must be: Continuous … Hostile … Open and Notorious … Actual … Exclusive” for the period set by state law (Wex). The periods vary widely. For example, California requires five years of continuous occupation and payment of “all state, county, or municipal taxes that have been levied and assessed upon the land” for those years (Cal. Code Civ. Proc. § 325(b)). Texas sets three-, five- and ten-year periods depending on color of title, taxes and a recorded deed (Tex. Civ. Prac. & Rem. Code §§ 16.024–16.026).

Easements

An easement “is the grant of a nonpossessory property interest that provides the easement holder permission to use another person’s land.” Easements “can be created by an express grant, by implication, by necessity, and by adverse possession” (Wex). Common examples include utility lines, shared driveways and access roads to landlocked parcels. An easement by necessity arises when land is divided and one part has no access except over the other.

Practical points

In many states, adverse possession cannot run against government land. In addition, a recorded easement usually binds later owners, and a prescriptive easement — gained by long open use — gives a right of use, not ownership.

Researching adverse possession in your state

First, find the statute or rule that governs adverse possession where you live. State law controls most of these questions, so the answer can change from one state to the next. Next, read recent decisions from the appellate courts in your state. They show how judges apply the law today. Also, check the local rules of the court that would hear your case. Our state procedures guide links to each state’s official rules. In addition, the Research Center explains how to confirm a source is still good law.

Sources and further reading

Official sources used on this page:

• law.cornell.edu
• law.cornell.edu
• california.public.law
• texas.public.law

Related reading on Lawtopolis:

• Deeds and Recording Acts: Warranty Deeds, Quitclaim Deeds and Race-Notice Rules
• Estates in Land and Co-Ownership: Fee Simple, Life Estates, Joint Tenancy
• Quiet title