Can adverse possession divide land?

There’s a large parcel of land out in the woods somewhere, and someone decides to live on it. The parcel is a hundred acres, wooded, and the trespasser only clears five acres for a home site and a small garden and easement to a road. When it eventually goes to court, the five-year period (Montana) has run and everything else, such that there’s no question that the squatter has rights to some land, but does the squatter get the whole parcel or just the five acres they cleared and used?

The general rule is that occupying the land only requires that you use it in the customary way. So if the normal use of that land is to build a cabin, you can still adversely possess the whole parcel with that use.

The squatter has to pay the taxes. And the landowner can file against him on the last day before the waiting period ends and he no longer has adverse possession.


Also, possession has to be open and notorious. You can’t just sneak into some backwoods one day every year. You have to live there openly and act in every way as if you own it, including paying taxes.

The purpose of adverse possession laws aren’t to give people a way to sneakily acquire someone else’s property. The purpose is to extinguish long forgotten land claims. If you buy some property and live there, and 30 years later someone shows up claiming that there was some problem with the title, adverse possession is there to settle the claim in your favor.

You’ve lived there and acted in every way as if you owned the place for years, and no one complained. If the stranger wanted to contest your title to the land because of reasons X, Y or Z, they should have done so years and years ago. Now it’s too late.

I suppose I should have expected that this would drift from the topic.

As a reminder, the topic isn’t the social utility of adverse possession, or the elements of adverse possession. It’s a focused question about whether adverse possession can divide land. You might notice that this is, in fact, the title of this thread, which may well be taken as a hint as to intent.

So I suppose Richard Parker’s answer is correct, that adverse possession does not divide land, and that the squatter would own the whole hundred acres, cleared or not.

It did on a property that my Wife sold. Well I think technically it created an easement.

Neighbors where parking on a corner of the lot for years. My Wife thought nothing of it. My Wife sold it, the new owners tried to boot the neighbors cars off, but a judge ruled to give them an easement.

My mom and her next-door neighbor have adversely possessed portions of each others’ lots. The neighbor’s dog fence ends at the corner of Mom’s garage, putting a strip of land next to the garage into their yard. Meanwhile, they never maintained the ground between their house and Mom’s driveway, so she’s had flowers planted there for years and years. The two pieces of land are about the same size, so neither one has raised a fuss about it.

This is interesting.

When I took a class on real estate law, the professor said that he had done it.

A fence between two parcels of land had been placed in the wrong location. When my professor’s neighbor tried to reclaim the corner, my professor pointed out that he had been using, and paying taxes on it, for ten years, and he won the case.

How was he assessed taxes on part of a lot? Was the neighbor paying correspondingly less taxes?

The hypothetical fails unless all legal conditions of adverse possession are fulfilled, including full tax payment on the entire parcel.

The hypothetical postulates successful adverse possession, so apparently the original landowner wasn’t paying taxes.

It can and does happen in Alabama. My ex-wife lost 1.4 acres out of her 4.5 acres to a neighbor who put up a fence (preventing us from cutting the weeds, grass, etc.). The neighbor sued, and the land was his.

Of course, this is Alabama!

I’m not sure why you are quoting me, since I wasn’t asking about the hypothetical case in the OP, but about the (apparently) actual case described by mbh, which implies that taxes were being paid on only part of the parcel.

Interesting … I just looked this up last month …

Oregon also has the requirement of “the person entering into possession had the honest belief that the person was the actual owner of the property” {ORS 105.620} … so this eliminates the typical “squatter rights”; one just can’t say “the house was empty” or “the acreage was undeveloped”, it doesn’t matter …

1] If you buying real estate and the seller tells you escrow is a waste of money … look for another place … always use escrow …

2] Buy a 100 foot tape measure and check where the property lines are before you sign … it’s not normally all that difficult, and if it is screwball, hire a pro to do the survey …

Yes. I don’t know how the city assessed things, but the neighbor had not been paying taxes on the disputed area, and the professor had been paying taxes on it.

I’m in GIS. Often people come in to search old aerial photos that will show roads/access across property. An old photo, showing an access can be used as evidence of how long it has been in existence. Whether or not that is enough for prescriptive rights is up to the courts to decide.

My in-laws neighbor sued them claiming a rock wall was infringing on their property by 3½ feet. The neighbor put an addition to the house and wanted a wider driveway. My wife and did not find out about the lawsuit till 3 days before the scheduled court date. I told my FIL to just claim adverse possession, if that didn’t work he was going to need an attorney. The attorny for the neighbor spent 15 minutes making his clients claim. The judge thought for a few seconds and said he had already made a decision based on the attorney’s claims. He found for my in-laws by adverse possession.

Only some states require the payment of taxes on the adversely possessed property- in some states it’s a requirement by statute while in others it’s a factor that the judge uses in determining possession. So at least in some states, you can gain adverse possession of part of a property even if you haven’t been paying taxes on that part of the property - which is how people can gain possession of a six inch wide strip of what was originally their neighbor’s land.

 Whether a fence or garden will qualify as adverse possession varies by state- the NY statute defines *de minimis* non-structural encroachments (including plantings, sheds, fences and non-structural walls) and  lawn mowing and other maintenance as permissive and non-adverse - which means that my neighbor cannot not gain possession of a three inch strip of my land because he put the fence on the wrong side of the property line ( even though I gave him permission to leave it there after it was put up to avoid this very issue)

In my state (West Virginia) after the ten year period has run, you would only have title to the five acres and the easement.

The only exception is if you had adversely possessed under color of title. Say a person sold you the 100 acres, didn’t really own it, but you lived on your 5 acre parcel for the requisite 10 years. Then you would own the full 100 acres.

Further, in my state, payment of property taxes has absolutely no bearing on adverse possession.

Thank you. I think “color of title” is the concept I was missing when I made the OP.