Abandonment is a defense against tresspass in Adverse Possessions

[Davido Davido]

Adverse Possession does NOT require trespassing. This post is made primarily for informational purposes.  I hope to alleviate some confusion. Our forums contain multiple posts from BP investors who are among the most respected and experienced on this site regarding the process of Adverse Possession.  A number of Adverse Possessors mistakenly state that the “hostile” requirement of the law of Adverse Possession (open, notorious, actual, continuous, hostile possession) necessarily requires breaking the law against trespassing. The notion that using one law (Adverse Possession), requires breaking another (Trespassing), is wrong on its face  Here are quotes to that effect from one of our threads.

While it is true that an adverse possessor’s actions must be hostile (opposed) to the owner of record’s interests. It is not true that making an effective claim of Adverse Possession requires trespassing. There is no trespass when the law recognizes a property as abandoned. For the crime of trespass to exist, a person with standing must claim an interest in the property.

An owner may, through words or actions, express or imply that he/she no longer has interest in the property.  To gain title by a claim of Adverse Possession a court would still need to find that the adverse possessor's claim to a property is legally opposed (hostile) to any potential claim by the owner of record.  However, the same court would have no basis to find the adverse possessor was trespassing if the owner him/herself expressly or implicitly claims no interest in the property.   Once it is established that real estate is Abandoned as a matter of law, -there can be no trespass because no one is claiming an interest that can be trespassed against.

While trespass against the owner of record could be part of an Adverse Possession claim (as in fence line disputes) where the owner had no intent to abandon his/her interest in their Real Property. There are many times when the owner of real estate either expresses (by word or in writing) his/her intent to abandon their interest or, more commonly, when an owner’s interest in real estate is abandoned implicitly. The law does recognize that anyone who for years does not use their property, does nothing to maintain it, does not pay taxes and cannot be located through their contact info and addresses of record -has implicitly abandoned their real estate.

It is helpful to recognize that implicit abandonment provides as effective a defense to trespass as does explicit abandonment. A quit claim deed is the preferred way to explicitly abandon one’s interest in real estate -but it is not the only way to abandon one’s interest.  Implicit abandonment (if established) provides as effective a shield against trespass as does the explicit abandonment of a quit claim deed.

Implicit abandonment is seldom litigated and can be difficult to prove. It is nonetheless a recognized legal concept, and a defense to accusations of trespass. While I personally rely on this position, please note that I am not an attorney, the foregoing is my opinion, and the laws applicable in your State should be reviewed.

I welcome replies from those with a different understanding of the law, or from states with notably different law.