05
Nov

What If Someone Is Using Your Property? It Could Be Adverse Possession in Arizona.

If you own real property, it is often surprising to learn that if you fail to use the property, it is possible for someone else to get a superior claim to your property. This is called Adverse Possession: a concept Arizona recognizes as a valid claim against your land.

The statute of adverse possession in Arizona is A.R.S. § 12-526 which says, A person who has a cause of action for recovery of any lands… from a person having peaceable and adverse possession thereof, cultivating, using and enjoying such property, shall commence an action therefor within ten years after the cause of action accrues. According to the Arizona Courts, a claimant who is attempting to gain quiet title by adverse possession must show that his or her possession is: (1) actual; (2) open and notorious; (3) hostile; (4) exclusive; and (5) continuous for the statutorily prescribed time period. Spaulding v. Pouliot, 218 Ariz. 196, 198, 181 P.3d 243, 245 (Ct. App. 2008)

Arizona Courts have defined Adverse Possession as:

(1)Actual: The claimant must physically possess the property. The claimant cannot merely say he owns the property.

(2)Open and Notorious: the claimants must use the land in a way that they give notice to the world and particularly to the true owner, that they are treating the property as their property, and not as defendants’ property. Rorebeck v. Criste, 398 P.2d 678, 681 (Ariz. Ct. App. 1965)

(3)Hostile: the claimant is in possession claiming as the owner in contra distinction to holding in recognition of, or insubordination to, the true owner. Combs v. DuBois, 135 Ariz. 465, 662 P.2d 140, 1982 Ariz. App. The claimant’s possession of the property must be without the true owner’s permission.

(4)Exclusive: The claimant must be the only party possessing and using the property.

(5)Continuous: The claimant must meet elements 1-4 for the prescribed time period of ten years. If at any time the claimant does not satisfy one of the elements, the possession is not continuous and the clock starts over.

This is not a comprehensive explanation of adverse possession, but is a general overview. Furthermore, sometimes the requirements for the claimant can change. For instance, the prescribed time period can be substantially reduced under certain circumstances.

Although adverse possession is a very old concept, it is very much alive and is one of the most important concepts because if all of the elements are satisfied, it can result in a loss of ownership of the property.

If you have any questions about adverse possession in Arizona, contact our office to schedule a free thirty minute consultation.