Adverse Possession

What is Adverse Possession?

     Adverse Possession refers to the legal process of obtaining property ownership through recognition of long-standing occupation and use.  Often, adverse possession is used to “clear” a land title against a competing claim of ownership.  The laws governing adverse possession are found at Sections 78B-2-208 to -219 of the Utah Code.  (Link is to Chapter 2 of Title 78B).

What Does “Adverse” Use Mean?

     “Adverse” usually means contrary to another person’s claim or interest in the property.  If one person can claim title to land, but does not use or occupy it, another person may establish an ownership claim by actually using or occupying it, and paying taxes.  The use should be apparent, so that any other claimant knows (or should know) that the property is being used.

What Constitutes Adverse Possession?

     There is a presumption that the person establishing legal title has the right to possess the property, and that any possession or use has been under the legal title.   A person may overcome that presumption and establish legal title to property by showing that the property has been held and possessed adversely to a legal claim for title for a least seven years.

   “Adverse possession may not be established unless it is shown that the land has been occupied and claimed continuously for seven years, and that the party and the party’s predecessors and grantors have paid all taxes which have been levied and assessed upon the land according to law. ” § 78B-2-214 of the Utah Code (see also § 78B-2-215, payment of taxes).

What is Considered Possession or Occupation of Land?

     If the claim is based on a written instrument or judgment purportedly giving title, then possession is established if the claimant does at least one of the following: (1) cultivates crops or installs another type of improvement, (2) encloses the claimed property with a fence; or  (3) uses the property for agricultural uses, pasture, or to harvest fuel or fencing timber.  Any one of the these activities may constitute possession, and the claimant may acquire entire parcels described in the written claim, even if only a portion is actually used or cultivated.  See § 78B-2-211.

     If the claim is not based on a written instrument, but another claim of title, then possession is established by performing all of the following:  (1) a substantial enclosure; (2) cultivation or other improvement; and (3) at least $5/acre expended on irrigation improvements.  All three criteria must be satisfied, and only the land actually occupied may be acquired through adverse possession.  See §§ 78B-2-212 and 78B-2-213.

How is Legal Title Established in Adverse Possession?

     A person occupying property and paying taxes for seven years only establishes a claim for legal title under adverse possession.  Actually clearing the title, and removing all competing claims may be done through agreement between the persons claiming an ownership interest, or through legal actions such as quiet title, trespass, or eviction.  The documentation of clear title, either through agreement or legal action, should then be recorded with the local county recorder’s office.

     A person claiming land ownership through adverse possession should consult with an attorney who is experienced in land title actions.

Is There Property That Cannot be Acquired Through Adverse Possession?

     Any land owned or held by a local government entity, and designated for public use, may not be acquired through adverse possession.  Lands owned or controlled by the state or federal government also may not be acquired by adverse possession.  See § 78B-2-216.

     Water rights may not be acquired by adverse possession, unless the seven-year possession period was completed prior to 1939.  See Otter Creek Reservoir Co. v. New Escalante Irrigation Co.

Cases Discussing Adverse Possession

Allred v. Allred, 2008 UT 22

Otter Creek Reservoir Co. v. New Escalante Irrigation Co., 2009 UT 16

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