Who Can Claim Property Based on Adverse Possession in Arizona?
If you’re a homeowner in Arizona, you likely have two or three neighbors surrounding your property. All sorts of disputes are possible with neighbors. But perhaps none is as troubling as their potential claims against your property through a legal doctrine called adverse possession.
To make sure that your land remains yours and that a neighbor can’t claim a portion of it, you should familiarize yourself with Arizona’s laws on adverse possession, which are slightly different from other states. There might also be times when you yourself need to assert an adverse possession claim, over land that you feel you’ve developed a right to use and want to continue using.
Arizona’s Requirements for Adverse Possession
Adverse possession is an ancient legal concept that allows a trespasser—sometimes a stranger, but more often a neighbor—to gain legal title over the land of the property owner. Old though its roots might be, the law’s continued utility is to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make the trespasser leave would actually create hardship.
Adverse possession in Arizona is controlled partly by statute (laws passed by the state legislature, at Ariz. Rev. Stat. §§ 12-522 et seq.), but also by state courts. A judge will consider a variety of factors in an adverse possession proceeding.
The trespasser’s possession must be:
- hostile (against the right of the true owner and without permission)
- actual (exercising control over the property)
- exclusive (in the possession of the trespasser alone)
- open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
- continuous for the period set by state statute (in most cases ten years under Ariz. Rev. Stat. § 12-526, though with important exceptions).
(See, for example, Spaulding v. Pouliot, 218 Ariz. 196, 198, 181 P.3d 243, 245 (Ct. App. 2008).)
Imagine that John and Ellen live next to one another in Phoenix. There is no dividing fence or boundary between their yards. John builds a gazebo that is actually on Ellen’s side of the property, covering about 14 square feet of earth. Ellen doesn’t say anything. Ben uses the gazebo as if it were on his own land. He does this for ten years. Under the rubric described above, John can probably establish that he “owns” the land on which he was encroaching. Ellen could have stopped John by asking, over those ten years, that he remove his structure, or insist that he sign a rental agreement. But Arizona courts won’t let Ellen kick out John after she ignored her rights for a full decade.
Claims for Adverse Possession Under Color of Title
An adverse possession claimant is typically required to have continuous possession of the subject property for a full ten-year period. However, Ariz. Rev. Stat. § § 12-523 allows “trespassers” who actually have some document (possibly defective) showing that title was transferred to them and who have been paying property taxes on the subject land to claim adverse possession rights after only three years. This is important to keep in mind as you review (or notice that you haven’t received!) your annual tax assessments.
Trespasser’s Intent Is Irrelevant in Arizona
In some states, a crucial legal determination is whether the trespasser knew that he or she was trespassing. In Arizona, this does not matter. The doctrine of adverse possession protects someone who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of others for the specific purpose of acquiring title.
In short, in Arizona, there is no requirement that the entry and continued possession of the property be done with knowing or intentional hostility.
Rather, any entry and possession for the required ten years that is exclusive, continuous, hostile, actual, and open—even if under a mistaken claim of title—is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether John built the gazebo knowing that he was on Ellen’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
Stopping Trespass or Encroachments on Your Arizona Land
What should you do if you spot a trespasser or a neighbor encroaching on your land? Chances are, it’s an innocent mistake on the person’s part. Given that, your first step should be to nicely ask the trespasser to move and to remove any structures or property on your land. Or, you could even grant permission to use it, in writing; by which you would affirm that the property is yours, and that the other party is using it only by your leave.
If the trespasser does not comply, and you don’t wish to give permission, you might be forced to consult a lawyer and bring legal action
This will most likely be an action to quiet title—a legal method for determining who holds title to land. You’d be asking an Arizona state court judge to issue an order declaring that you, and not the trespasser, are the true owner of the land. A quiet title order is particularly helpful if you are intending to sell your property, and will need to reassure potential buyers about its boundaries and rightful ownership.
Source
https://www.nolo.com/legal-encyclopedia/who-can-claim-property-based-adverse-possession-arizona.html
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