When Can Your Neighbors Legally Take Your Land?
There is a concept in real estate law that is little known outside the legal world, whereby a trespasser can gain legal title to someone else’s land. The “trespasser” in these cases is usually a neighbor but, nonetheless, someone who does not own your property can become the legal owner by his use of it through a concept known as adverse possession. Claims of adverse possession are creatures of common law in Illinois, and require a showing of several elements.
In order to legally take title to land, a person’s use and possession of the land must be:
- Hostile (against the right of the true owner and without permission)
- Actual (he or she exercises physical control over the property)
- Exclusive (In the possession of the trespasser alone and no one else)
- Open and notorious (the trespasser must use the property as the true owner would without hiding the occupancy)
- Continuous for a period of 20 years
Adverse possession claims are especially common in rural areas (like most of Southern Illinois) as opposed to towns and cities because it is often more difficult to determine where one piece of property ends and another begins.
Example of Adverse Possession
Let’s take a look at how a hypothetical adverse possession case might play out. Assume there are two property owners—the Smiths and the Joneses—who own neighboring farms. Mr. Smith erects a barn that he believes is on his property, but is actually 15 feet over the property line on the Jones’s farm. Mr. Jones says nothing about this, and Mr. Smith uses this barn as an ordinary farmer would for a period of 25 years. After he discovers that his barn is actually on the Jones’s property, Mr. Smith would be able to bring an action to gain title to the land through adverse possession.
Why does the law permit this? Isn’t this essentially legalized theft? The most common legal justification for adverse possession is that the law should favor landowners who put their lands to their highest and best uses. It is assumed in the law that if someone is trespassing on a piece of property for at least 20 years without the owner noticing or taking legal action to remove him, the landowner probably is not using the land to its highest and best potential. Rather, the trespasser should be rewarded with the land for putting it to better use than the original owner.
Call a Real Estate Lawyer in Southern Illinois Today
If you are involved in an adverse possession proceeding or think you might have a claim to title through adverse possession, contact the Southern Illinois real estate lawyers at the Lawler Brown Law Firm at 618-993-2222 today.