In most instances, of course, property owners have the legal right to remove from their property anyone whose presence is unwelcome. However, if you have allowed someone to occupy land to which you hold the title, to invest in improvements to it and build fencing on it, and to pay the taxes associated with it, then after a certain number of years (in Utah, seven) that party may have their own legal claim to the property thanks to something called adverse possession. The real estate and land use attorneys at Snow Jensen & Reece, P.C. have built a reputation for providing our clients with assertive, forward-thinking representation. Our depth of experience in title disputes may be especially helpful to property owners facing adverse possession. Call our office at (435) 628-3688 today to set up a consultation so we can hear the particulars of your situation.
What Is Adverse Possession?
Adverse possession is a legal principle under which a person who asserts a legal right to a piece of real property, invests in it, and continuously occupies it for a statutorily defined period while also paying all taxes associated with ownership of that property may under certain circumstances claim and be awarded the formal legal title to the property, even though someone else has been listed as the legal owner throughout this entire period. As the Legal Information Institute (LII) explains, adverse possession has a long-established history in common law and is acknowledged in many jurisdictions, each of which sets its own precise requirements. In the United States, adverse possession is a matter for state, rather than federal, law, and so the rules that govern adverse possession in Utah may not look exactly like those that apply in other parts of the country.
Summary of Adverse Possession in Utah
Under Utah law, a person may obtain legal title to another’s land through adverse possession if statutory requirements, including seven years of continuous occupation and payment of property taxes, are satisfied.
- Utah Code Annotated § 78B-2-214 requires at least seven years of continuous, adverse possession, along with payment of all taxes levied and assessed on the property.
- A claimant must establish specific elements, including intent to claim, notice to the record owner, and open, notorious, and hostile possession throughout the statutory period.
- Utah law distinguishes between adverse possession under color of title, which involves a written instrument or judgment, and adverse possession without a written instrument under § 78B-2-213, each with different proof requirements, such as enclosure, cultivation, improvement, or irrigation investment.
Individuals and property owners navigating adverse possession or title disputes in Utah may seek guidance from the team at Snow, Jensen & Reece, P.C., which serves clients in real estate and land use matters.
Basic Requirements for Adverse Possession Under Utah Law
In Utah, the general presumption is that the legal rights to any parcel of real property belong to whoever is officially recorded as holding the formal title to that property. In most parts of the United States, these records are held in the courthouse of the county where the property is physically located (instead of, for example, in the county where the person claiming the title resides). Utah makes provision for adverse possession under Utah Code Annotated § 78B-2-214, which also establishes the essential requirements that individuals or entities seeking to claim the title to a property under the principle of adverse possession must meet.
These requirements include:
- Continuous occupation of the property for a period of at least seven years
- Payment of all taxes “levied and assessed” on that property
The same party does not have to occupy or claim the property for the entire period; a claimant’s “predecessors” may have asserted the claim and occupied the property, notably in instances where the current claimant is an heir to the party who had initiated adverse possession. However, the occupation itself must be both continuous and “adverse,” or contrary to the legal claims of the person recorded as the property owner, for the entire period.
Special Considerations Regarding Tax Obligations
The assumption of responsibility for property taxes is one of the central features of adverse possession from a legal standpoint. To show adverse possession, the claimant must present evidence showing that they or their predecessors (other than the holder of the current title of record) have satisfied all taxes associated with the property during the period of their occupation.
The 78B-2-214 requirement generally means that the fulfillment of tax obligations will be examined by reference to the seven-year minimum period for adverse possession in any proceeding opened by the party seeking to finalize their claim to the property through adverse possession. However, in instances where the adverse possessor has strong evidence to support a claim, Utah § 78B-2-209(2) allows for a shift of presumption regarding rightful ownership when both of the following apply:
- The party occupying the property can show itself to have assumed all tax obligations for the property over the four years before the initiation of the legal action.
- Tax records show that the property owner seeking to remove the adverse possessor(s) has not paid taxes on the property during those four years.
From the perspective of either party, the relationship between adverse possession and property taxes can present several complicated questions, so at Snow, Jensen & Reece, P.C., we generally recommend that individuals navigating these matters, or commercial property owners preparing to navigate them on behalf of their businesses, seek the advice of an attorney in their area who is familiar with the intricacies of Utah adverse possession law.
Elements of Adverse Possession
Trespass is, unfortunately, a common occurrence. Boundary disputes, both innocent and nefarious, are similarly widespread. Adverse possession is related to both of these, but is distinguished by the presence of a core set of conditions, known as the “elements” of adverse possession. These elements are as follows:
- Intent to claim: The adverse possessor must occupy the property with the intention of claiming legal title to it
- Actual or constructive notice of claim: The adverse possessor must make the holder of the current legal property title aware of their intent to claim the property
- Open, notorious, and hostile manner of possession
“Hostile” here refers to the relationship of the adverse claim to the prior claim, not necessarily to the relationship between the adverse possessor and the party who holds current title to the property (although adversely possessing someone else’s land is usually not a strategy calculated to foster harmony).
Each element must be present for the situation to qualify as an instance of adverse possession. In addition, the occupation of the property must be continuous throughout the entire period. In Utah, the minimum period is usually seven years.
Adverse Possession With and Without Written Instruments
Adverse possession in Utah may be claimed in either of two ways:
- Based on a written instrument or judgment
- Without a written instrument
Slightly different requirements apply to securing the formal legal title to a property through adverse possession, depending on whether the process does or does not involve a written instrument. Always allowing for exceptions, the written instrument process, also called adverse possession under color of title, tends to be common in specific types of boundary disputes, particularly those involving competing land surveys or, in some cases, competing interpretations of land surveys whose descriptions were unclear, or which were written with reference to landmarks that have since been changed or moved.
Adverse possession without color of title is not unheard of, particularly where a property line has been poorly marked, and the legal provisions are there for the situations in which they may apply. A Utah attorney with experience in civil disputes over real estate claims may be able to help you sort out the implications of inconsistent or unclear title documents in your particular case.
Adverse Possession With a Written Instrument
To achieve property title through adverse possession in a case that turns on a written instrument, the adverse possessor must show that over the course of the seven years, the individual or entity has done one or more of the following:
- “Substantially” enclosed the property (i.e., by fencing it in), or has habitually used it for such purposes as fuel, timber, or the pasturage for livestock
- Cultivated the property, or made “improvements” to it
For parcels of land that have been divided (typically by prior surveys) into lots, the partial use and improvement of a lot constitute occupancy of the whole lot. However, only lots that are at least partially used and improved are considered to be “possessed” for the purpose of evaluating an adverse possession claim. In other words, adverse possession can sometimes lead a tract of land to be divided between owners when some lots, but not others, are deemed to have been adversely possessed for the full seven-year period.
Adverse Possession Without a Written Instrument
When there is no written instrument or judgment on which an adverse possessor’s claim may rest, Utah § 78B-2-213 provides for a claimant to establish adverse possession by showing at least one of the following:
- That the property has been protected with a substantial structure (such as a fence)
- That the property has been “usually” cultivated or improved throughout the seven-year timeframe
- That the adverse possessor has made an investment equivalent to $5 per acre in labor or money for the irrigation of the land
“Irrigation” improvements may include the digging of canals across portions of the property, the construction of artificial dams or embankments, the installation of aqueducts, and other similar measures for ensuring that the land is usable for agriculture or animal husbandry.
Utah Title Dispute Lawyers
Any instance of a disputed title to land can be stressful. If someone has claimed land held in your name under adverse possession, the amount they may be able to claim will likely depend on whether they have a written instrument, such as a judgment or a defective title, that would give them a legal claim to the property, if valid. However, one of the most critical factors can be the amount of time that has passed since this party indicated its intent to claim the property. Who has paid property taxes and over what acreage will also be a central consideration. To discuss the specifics of your situation with a Utah attorney experienced in title disputes, call (435) 628-3688 to schedule a consultation with a member of the team at Snow, Jensen & Reece, P.C.
Important FAQs About Utah Adverse Possession
Read further for key insights into adverse possession provided by these answers to common questions.
What Is Adverse Possession Under Utah Law?
Adverse possession is a legal doctrine that allows a person to claim ownership of real property if statutory requirements are met over a defined period. In Utah, adverse possession is governed by state law, including Utah Code Annotated § 78B-2-214. The doctrine requires continuous and adverse occupation, along with payment of all assessed property taxes for at least seven years.
What Are The Basic Requirements For Adverse Possession In Utah?
Utah law requires continuous occupation of the property for a minimum of seven years and payment of all taxes levied and assessed during that period. The possession must be adverse to the interests of the recorded owner and must remain uninterrupted. In some cases, a claimant may rely on the possession of predecessors to satisfy the seven-year requirement.
What Does “Hostile” Possession Mean In Adverse Possession Cases?
“Hostile” possession refers to an occupation that is inconsistent with the legal rights of the recorded property owner. It does not necessarily imply aggression or personal conflict. Instead, it means the claimant occupies the property without permission and with a claim of ownership.
What Is The Difference Between Adverse Possession With And Without Color Of Title?
Adverse possession under color of title involves a written instrument or judgment that appears to grant ownership but may be legally defective. Without a color of title, a claimant must meet alternative statutory criteria, such as substantial enclosure, usual cultivation or improvement, or specific irrigation investments. Each method carries distinct evidentiary requirements under Utah statutes.
Does Adverse Possession Apply To Only Part Of A Property?
Adverse possession may apply to specific lots or portions of a larger parcel if those sections were actually used, enclosed, or improved. Partial use of a subdivided lot can constitute possession of the whole lot in certain circumstances. However, only the portions meeting statutory requirements for the full seven-year period may qualify.
How Can Snow, Jensen & Reece, P.C. Assist With Utah Adverse Possession Matters?
Adverse possession and title disputes often involve complex factual and legal issues related to occupation, tax records, surveys, and written instruments. Attorneys at Snow, Jensen & Reece, P.C. could help clarify available legal options, evaluate statutory requirements, and assess potential claims or defenses. Consider visiting with an experienced attorney at Snow, Jensen & Reece, P.C. to learn more about legal rights and possible courses of action under Utah law.