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Updated: April 19, 2024 @ 2:06 pm
Ahwatukee resident and attorney Patrick R. MacQueen is founder of Medalist Legal, PLC.
Ahwatukee resident and attorney Patrick R. MacQueen is founder of Medalist Legal, PLC.
Does the old adage that “possession is nine-tenths of the law” really mean anything in Arizona? Yes it does!
In Arizona, when real estate is used or possessed by someone other than the true owner, the non-owner can acquire title to the true owner’s property.
And, yes, this really happens – a lot. Possessing and using real property, whether acting as the owner of the property or using someone else’s property without their permission, can cause the permanent transfer of title to the real estate.
This occurs because of the concepts of “adverse possession” and “prescriptive easement.”
Through adverse possession, ownership of real estate is permanently transferred from the original owner to the possessor of the land as a result of the possessor’s occupation and use of the land. This possession is sometimes intentional, but oftentimes it occurs due to a mistake about boundary lines.
So, for example, if I place pavers on my neighbor’s land and continue to use that area as if I own it, I may end up owning that portion of my neighbor’s property if I continue to use it for a period of time – even if my intent was never to “take” the land.
The same is true if I mow a portion of my neighbor’s grass with the belief that the area being mowed is mine.
This is how golf courses end up “taking” portions of property owned by those with homes and lawns near the course (i.e., continuous cutting of the homeowner’s grass by the golf course’s maintenance crew).
There are various other examples of adverse possession that are common to homes in Arizona – including the misplacement of boundary walls, the overgrowth of vegetation, and the improper placement of guest homes, ancillary buildings, planters, and sheds.
Similarly, the concept of a “prescriptive easement” results in the permanent transfer of the right to use property that is owned by another.
Unlike adverse possession, title to the property remains with the original owner and the non-owner receives an easement as opposed to actual “fee” title.
Prescriptive easements are commonly created by using a pathway through a neighbor’s property to reach a trail or street.
Similarly, the use of a neighbor’s driveway can also result in a prescriptive easement being granted to the non-owner.
If you believe you have acquired property through adverse possession or that you have acquired a prescriptive easement, there are some steps you should take to document and officially record the transfer of property rights.
For starters, take a look at A.R.S. 12-1103 to see if that statute applies to you. In some instances, you may need to file an action to “quiet title” and have a court confirm that you have properly “taken” the owner’s property.
Similarly, if you are concerned that someone may be attempting to acquire your property rights, there are certain things you can do to prevent this from occurring.
These preventative measures do not work in all circumstances, but posting no-trespassing signs, granting a license to use the property, or installing gates may help to limit someone else’s ability to acquire your property.
If you have questions about whether you have acquired property via adverse possession or prescriptive easement or are wondering what else you can do to avoid someone from acquiring your property, feel free to email me at pmacqueen@medalistlegal.com or call 602-767-0050.
Ahwatukee resident and attorney Patrick R. MacQueen is founder of Medalist Legal, PLC.
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