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Mind Your Property Rights

Posted by attorney Patrick MacQueen

Owners of Arizona real estate are often surprised to learn that an individual may be able to acquire title to land by utilizing that land openly, adversely and continuously for a statutory period. In fact, your favorite neighbor can, by occupying your land for a period of time, gain legal ownership of your land through adverse possession or through obtaining a prescriptive easement.

Adverse Possession: According to Arizona law, a landowner is entitled to legal ownership of property if his occupation of the property is hostile, actual, open and notorious, exclusive and continuous for a period of 10 years. A.R.S. §§12-521 & 12-526. Essentially, an adverse possession claimant must use the property and let the world know that he is claiming the property as his own. In particular, in order to gain property by adverse possession, a claimant need only utilize the property as a typical landowner would utilize the property. To this end, adverse possession claims are typically bolstered by, among other things, affidavits of witnesses, aerial photographs, and sometimes utility and water bills.

Prescriptive Easement: A related concern for Arizona property owners is a prescriptive easement. Very generally, an easement is an interest in land that allows one to utilize the land for a specific purpose. A prescriptive easement is an easement that arises due to the open, adverse, and continuous utilization of land for a period of 10 years. While the manner in which someone acquires a prescriptive easement is very similar to the manner in which someone obtains title by adverse possession, there are several distinctions between the two concepts. One such distinction involves the nature of the right acquired through adverse possession and that acquired through a prescriptive easement. To this end, if a party meets the requirements to satisfy a claim for a prescriptive easement, that party does not obtain title to your property. Rather, the party merely obtains an easement across the property. By satisfying a claim for adverse possession, however, an adverse possessor obtains title to all of the property.

Claims for adverse possession and prescriptive easement require the consideration of a multitude of additional issues. Nevertheless, there are some things you may be able to do in order to potentially prevent losing your property to a neighbor: (1) grant permission to use a portion of your land; (2) obtain and review a survey of your property; and/or (3) consult with a real estate attorney to learn about additional steps that may help to prevent losing ownership of disputed land. In fact, if you think that you have a claim for adverse possession or prescriptive easement or have been named as a party to a lawsuit related to any title claim, you should consult with an attorney as soon as possible.

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