The Time Element
In Arizona, the establishment of title to land by adverse possession is provided by our statutes, A.R.S. §§12-521 - 527. Acquiring title to another's land by this doctrine is governed by a combination physical possession and duration of possession, i.e., the above statute of limitations. There are four separate time limits for adverse possession, 2, 3, 5 and 10 years. The three shorter years are uncommon occurrences. The most prevalent form of dispute falls under the 10 year limitation, which is discussed in this post.
The ten year time limitation is set by A.R.S. § 12-526(A): A person seeking to prevent another from perfecting adverse possession of their land “. . . shall commence an action therefor within ten years after the cause of action accrues, and not afterward.”
After ten years have expired, the adverse possessor may file a quiet title action to have the possessed property title vested in him. In fact, as long as the other factual elements are satisfied (see below), beyond the ten year limitation, title vests as a matter of law in the adverse possessor. A.R.S. § 12-527 The affected property owner is then “barred” from recovering the adversely possessed portion of their land.
The Factual Elements; Definitions
“Adverse possession” means an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.
“Hostile” as applied to possession of realty does not connote ill will or evil intent, but merely a showing that one in possession of the land claims exclusive right thereto and denies by word or act the owner's title. Therefore, one who occupies by the owner's agreement or permission is not in “hostile” possession.
“Peaceable possession” means possession which is continuous, and not interrupted by an adverse action to recover the land. An adverse act is the owner bringing suit to prevent vesting before the ten year limitation period of A.R.S. § 12-526.
The doctrine of “tacking” allows the periods of possession of prior owners to be added together in determining the ten year limitation period. Peaceable and adverse possession need not be continued in the same person. The period of possession by a prior owner can be “tacked” on the current possessor's period as long as they are direct successors to the title. Tacking permits one claiming title by adverse possession to add his period of possession to that of a prior adverse possessor or possessors in order to establish a continuous possession for the statutory period. Thus, if the original property owner had been adversely possessing adjacent land continually for 9 years, the successive owner's claim ripens one year after his purchase.
Lack of knowledge or mistake by the adverse claimant is not determinative. “In all cases the intention and not the mistake is the test by which the character of the possession is determined, it being prima facie sufficient that actual, visible, and exclusive possession is taken under a claim of right without reference to the fact that the possession was based on mistake.” Trevillian v. Rais, 40 Ariz. 42, 9 P.2d 402 (1932)
Actual notice of an encroachment is not required. A fence or other physical delineation imparts presumptive notice that will suffice to trigger the accrual, or starting date, of the period of possession.
“To require that a land owner have actual knowledge of a claimant's actions in order to establish notice would foreclose obtaining title by adverse possession when the owner removes himself from any contact with the property. We do not believe that this is the intent of the adverse possession statutes, as there is no requirement in either A.R.S. §§ 12-521(A) or 12-526(A) that the true owner actually be aware of the claimant's appropriation of the land.” Lewis v. Pleasant Country, 173 Ariz. 186, 840 P.2d 1051, (Ct. App. 1992)
In addition, Arizona courts have allowed presumptive notice to be the basis of an adverse possession claim in the following circumstances:
1. adverse possession may be based on the presumption that facts and circumstances indicate a claimant repudiates the owner's title; to give notice of claim;
2. hostile acts must carry the presumption that the owner would observe them if he visited the property;
3.to establish adverse possession a claimant need only show that he occupied or used the land as would an ordinary owner of the same type of land taking into account the uses for which the land was suitable.
If you believe that you have a claim or may be exposed to a claim for adverse possession, please call R Harvey Dye Law, PC and we will address your concerns and suggest options. The firm receives numerous calls on this question, usually resulting from fence encroachments. In these cases the simplest solution is an agreement between property owners which removes the “hostile” element and nullifies adverse possession.