Adverse Possession

Adverse Possession


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Ever heard of adverse possession? I suspect Cindy Kinsler had never heard about adverse possession before moving into her house in 2018. She started building a fence that included regrading her backyard. The fight over the fence started soon after Kinsler moved in

“I found out that the neighbor’s fence was about 4 or 5 feet onto my property,” she said. “It was an old chain-link fence, and it was falling over.”

It surrounded the back yard of the home next door, and one side of it bordered Kinsler’s yard. That section was on her property, and it’s the section of fence she wanted to replace. The house owner refused to take any action on the fence; instead, “My neighbor sued me,” Kinsler said. “And he won.”

Adverse Possession

The lawsuit centers around something called adverse possession.

Real estate attorney David Skalka isn’t connected to Kinsler’s case but is familiar with adverse possession cases.

According to KETV 7, “Adverse possession provides that if someone has openly used and maintained a property for a period, believing they are the owner, then they can become the owner of the property if they’ve maintained it for ten years,” Skalka said.

Cindy Kinsler hopes other homeowners never have to experience what she has.

Squatter Rights

Squatters may invite the law to recognize their adverse possession. A squatter can claim rights to the property. It takes ten years of continuous residence in Nebraska before a squatter can make an adverse possession claim. You can extend the time by another ten years if the landowner is legally disabled. When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter has legal permission to remain there and is no longer considered a criminal trespasser.

There are five distinct legal requirements in the US that the squatter must meet before they can make an adverse possession claim. The occupation must be:

  1. Hostile
  2. Actual
  3. Open & Notorious
  4. Exclusive
  5. Continuous

If the squatter does not fulfill these five elements, they do not have grounds for adverse possession.

Hostile Claim

“Hostile” doesn’t necessarily mean violent or dangerous. In the legal sense, hostile has three definitions that states may choose to use.

  1. Simple occupation. This rule is followed by most states today. The law defines hostile as the mere occupation of the land. The trespasser doesn’t have to know that the land belongs to someone else.
  2. Awareness of trespassing. Using this rule, the trespasser has to be aware that their use of the property amounts to trespassing. They have to know that they have no legal right to be on the property.
  3. Good faith mistake. A few states follow this rule, which requires that the trespasser has made an innocent good faith mistake in occupying the property in the first place. They may have been relying on an invalid or incorrect deed without knowing the property’s current legal status. In other words, they are using the property ‘in good faith

Do Squatters Have to Pay Property Taxes in Nebraska?

Some states require that squatters pay property taxes to make an adverse possession claim. Nebraska isn’t one of them. While a squatter may use their receipts and documentation from paying property taxes to help their case, it isn’t required and won’t decrease the continuous possession necessary time.

Tips for Protecting Yourself From iProperty Management

  • Inspect the property regularly.
  • Secure the property (Block entrances, close all windows, lock all doors, etc.).
  • Put up “No Trespassing” signs on the property, especially if it is currently unoccupied.
  • Serve written notice as soon as you realize that squatters are present.
  • Offer to rent the property to the squatters.
  • Call the sheriff (not the local police) to remove squatters from the premises if they do not leave.
  • Hire a lawyer. You may need to take legal action to get a squatter off of your property in some cases. Have legal counsel on your side to ensure that you are always acting within the law.

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Photo by Hans Eiskonen on Unsplash 

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