The idea that long-term use of land that is not yours can eventually bring the user ownership rights is unique in U.S. law.
Adverse possession is a legal doctrine with which not many are familiar and that has rather extraordinary power in narrow circumstances to actually create legal title to property that was not purchased, gifted or inherited. When a person uses land continuously over time that belongs to someone else, eventually the person using the property earns ownership rights, if certain conditions are met.
Adverse possession has roots in ancient practices. In the United States, adverse possession laws are basically imports from English law. Roughly, it was based on the idea that land should be used, especially farmed, and that if an owner fails to use property, another person who is not an owner can get ownership rights just by use and possession.
Elements of adverse possession
New Mexico’s adverse possession statute is written in legalistic and confusing language. This is not surprising, since it was first enacted in the mid-1800s. To boil it down to its core elements, to have a successful ownership claim over private property based on adverse possession, the possessor must have:
- Color of title
- Openly and continuously had physical possession of the land
- A claim in good faith of right or title to the property
- Ten years of exclusive possession
- Paid taxes on the land during the time of possession
The requirement that the possession be continuous for ten years can still be met if the descendants of the original possessor were there for part of the time.
Adverse possession does not apply to property owned by a governmental body.
Adverse possession in court
Anyone in New Mexico who has a claim for adverse possession can assert it by filing a quiet title suit in state court. If the claim is proven with clear and convincing evidence, the court can give title to the adverse possessor. On the other side, a landowner who faces a claim of adverse possession might assert that the possessor has been trespassing and the court should legally eject the trespasser from the property by court order.
Anyone facing a real estate issue that could involve adverse possession should direct questions to an experienced attorney for advice and counsel.
Attorney Scott Turner of The Turner Law Firm, LLC, in Albuquerque represents clients in the Albuquerque area and throughout New Mexico in a wide variety of real estate matters, including those concerning adverse possession. Attorney Turner helps clients negotiate or mediate their real estate disputes to settlement when possible, but does not hesitate to elevate disputes to the courtroom when necessary.