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In some cases, someone could take part of your land. While adverse possession is not a well-known concept, the concept is as old as time. In a nutshell, if someone meets certain requirements, they could claim that property that they did not buy is theirs. It is not easy to claim property under adverse possession – luckily, or you’d have many real estate lawsuits.
Adverse possession exists in the law as it favors someone who makes good use of the land instead of someone who “sleeps on their rights.”
No Trespassing
While you cannot trespass with the intention of taking the property, you must trespass where the landowner can see you. If the landowner never tells you to get off their property and lets you continue to trespass; you might be eligible to get the property under West Virginia’s adverse possession laws after some time.
To make a claim for adverse possession, you must meet five elements:
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Have possession of the land for at least 10 uninterrupted years. You actually have to use the land – you can’t merely travel over it once in a while. For example, if you put a driveway on the land or build a house on the land, you might qualify for adverse possession if you meet the rest of the requirements.
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The claim must be hostile in that you have to "make an honest mistake," such as relying on an incorrect deed. Hostile means that your occupation of the land is adverse to the landowner – it does not mean that you are physically hostile to the landowner. You must also occupy the land whether you know it is private property or not, or you must be aware that you are trespassing.
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You must have actual possession of the land, which means you have to treat the land as your own and must be physically present on the land.
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The trespass must be open – it cannot be secret. However, if you are occupying the land and not keeping it a secret, but the landowner does not notice that you are on their land, you may still file an adverse possession claim.
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Finally, you cannot share the possession with anyone else.
If you have met all of the conditions for at least 10 years, you may file a claim for adverse possession. Because you are trespassing and intend on filing a claim, it does not give you the right of entry. If the landowner finds that you are trespassing and asks you to leave, you must leave. If the landowner files a claim against you, you will not be able to file a claim for adverse possession.
Examples of Adverse Possession
Someone who is taking the land by adverse possession could take a few hundred feet or a few hundred acres of land, depending on the use. For example, if someone puts a driveway on the edge of their property, when in reality, the driveway is 50 feet onto your property, the land the driveway occupies may be claimed in an adverse possession claim.
When purchasing property, it is always a good idea to have it surveyed by a reputable surveyor. You should never rely on a seller’s boundary descriptions, as they might not know that someone is trespassing on their land.