Adverse possession is a common law concept that provides a way for a person in possession of property to obtain legal title to it despite another person's ownership. This curious area of the law has roots in America’s pioneer era of the 1800s, which promoted productive use of land over allowing it to remain idle. Adverse possession also is rooted in the unofficial nature of ancient land sales that allowed for a person who publicly established himself on land he believed was his and possessed the land for a period of time without dispute from another person to take ownership of the land. Arizona, like every other state, recognizes adverse possession and has specific laws to govern the practice.
Elements of Adverse Possession
In Arizona, a person may claim a right to property by adverse possession if he actually enters the property, makes his possession of the land visible to the public and exclusively possesses the land without the owner’s consent. Furthermore, possession of the property must be continuous for at least 10 years; a person who occasionally possesses a property when he is not the legal owner may be considered a trespasser in violation of law and has no right to an adverse possession claim.
Successive Adverse Possessors
Arizona law provides that a person may meet the requirement for 10 years of continuous possession through tacking. This occurs when there are successive adverse possessors who each possess the property for less than 10 years at a time. If a person is in adverse possession of a property for four years and then sells it to another person, who takes adverse possession of the property for six years, then the current person in adverse possession of the property may tack his successor's four years of possession onto his six years of possession to meet Arizona’s 10 years of continuous possession requirement.
Disibility, Minority or Imprisonment of Original Owner
The Arizona courts give special consideration to situations where the original property owner was under the age of 18, disabled or imprisoned when the newcomer commenced adverse possession of the property. If the original owner was a minor or not of sound mind when the newcomer commenced adverse possession of his property, then the owner’s period of minority or disability during the adverse possession will not be considered part of the newcomer’s continuous period of possession. If the original owner was imprisoned when the commenced adverse possession of his property, then the newcomer’s period of continuous possession does not begin until the original owner discovers the newcomer’s adverse possession of the property or should have discovered through reasonable diligence the adverse possession.
Other Special Rules
In Arizona, a person in adverse possession of a property must pay five consecutive years of property taxes on the property before obtaining legal title. Also, the maximum amount of land in Arizona a person can acquire through adverse possession is 160 acres, including any improvements he might make to the land during his period of continuous possession.
Lisa S. Kramer is a licensed attorney practicing civil litigation and estates and trusts law in southern Florida. She received her Bachelor of Arts in English from the University of Florida, where she graduated Phi Beta Kappa and cum laude. Kramer earned her Juris Doctor from the University of Florida Levin College of Law.