Quiet Title Adverse Possession

A quiet title claim is a claim brought by a plaintiff to establish their claim or right to land by forcing an adverse claimant to prove their claim or be prevented from ever bringing a claim. Read on to learn more. 

The Role of Legal Descriptions and Land Surveys in Quiet Title Claims

Quiet title disputes surface because the historic use and division of parcels of land or lots is inconsistent with the legal description of the land in the title or deed. A legal description is a series of bearings and distances relating land to a historical boundary marker that has been recorded with the county recorder. A land surveyor utilizes high tech equipment including GPS to determine the precise location of a parcel of land based on the description. Rarely does a buyer or seller of real estate obtain a land survey to precisely determine the boundaries of their property. If the historic use of the land is inaccurate, you may be in possession of your neighbor’s land. Alternatively, your neighbor may be in possession of your land. The doctrine of adverse possession or the prescriptive easement doctrine may divest you of some or all of your property rights if you fail to take action. Likewise, if you have been encroaching on and are in possession of adjacent land, you may have a claim to the land. In addition to increasing the value of your property, there are oftentimes legal benefits to quieting title in your favor to the land.

Adverse Possession

Adverse possession allows an individual to acquire title to land by utilizing that land openly, adversely and continuously for the statutory period. The party moving for quiet title has the burden of proof on an adverse possession claim and must prove that the actual and visible appropriation of land commenced and continued under a claim or right inconsistent with and hostile to the claim of another for a period of ten years. A.R.S. §§12-521 & 12-526. Basically, a claimant must use the land and let the world know you are claiming it as your own. A claimant only has to utilize the land as a typical land owner would. The adverse possession claimant need not fence in the property. Adverse possession claims are supported with aerial photographs and affidavits of witnesses who are familiar with the use of the land.

Prescriptive Easements

An easement is an interest in land that allows one to utilize the land for a specific purpose. A prescriptive easement is an easement that ripens through the open, adverse and continuous use of land for the statutory period of ten years. Typically, a prescriptive easement occurs when a party has continuously used property of another for the sole purpose of ingress and egress for the statutory period. Generally, prescriptive easements come to fruition when a landowner tries to exclude a trespasser by blocking an access road or path that has been utilized for over ten years. The trespasser may have developed an easement by prescription and have a right to utilize the land as such.

Title Insurance and Adverse Possession

Unfortunately, if you are a defendant in an action related to adverse possession or a prescriptive easement, the standard title insurance policy usually excludes claims that are not discoverable from a search of the county records. Adverse uses of land are not recorded and your title insurance company typically will deny a request to either bring an adverse possession claim on your behalf or defend a claim related to an adverse possession.

Craig Cherney is a trusted client advisor and a sought after real estate lawyer and expert witness who is hired by the nation’s top Real Estate Litigation Attorneys to help resolve their litigated real property matters.  Craig has appeared as a testifying expert witness before judges and juries in California, Arizona, Nevada and other jurisdictions across the country. Craig Cherney, Esq. Expert Witness Real Estate. 480-399-2342.  If you are litigating an easement case, Craig Cherney might be able to help you advance and win your case.