Litigation and Lawsuits Related to Quiet Title Claims, Adverse Possession and Prescriptive Easements

A quiet title claim is a claim brought by a plaintiff to establish his or her claim or right to land by forcing an adverse claimant to prove their claim or be prohibited from ever bringing a claim. In Arizona, quiet title claims or ownership disputes often arise between adjacent landowners related to property lines and the boundaries of adjacent parcels. Quiet title claims often revolve around the legal doctrines of adverse possession and prescriptive easements.

The Role of Legal Descriptions and Land Surveys in Quiet Title Claims

Quiet title disputes surface because the historic use and division of parcels of land or lots is inconsistent with the legal description of the land in the title or deed. If you have any familiarity with legal descriptions, you can understand why this might happen. A legal description is a series of bearings and distances relating land to a historical boundary marker that has been recorded with the county recorder. The true location of a parcel of land is virtually impossible to determine based on a legal description without the aid of a land surveyor. A land surveyor utilizes high tech equipment including GPS to determine the precise location of a parcel of land based on the description. Rarely does a buyer or seller of real estate obtain a land survey to precisely determine the boundaries of their property. Instead, most people rely on the historic use of the property which may or may not be correct. If the historic use of the land is inaccurate, you may be in possession of your neighbor's land. Alternatively, your neighbor may be in possession of your land. If you suspect that your neighbor is encroaching upon your land, you should investigate and potentially take action. The doctrine of adverse possession or the prescriptive easement doctrine may divest you of some or all of your property rights if you fail to take action. Likewise, if you have been encroaching on and are in possession of adjacent land, you may have a claim to the land. In addition to increasing the value of your property, there are oftentimes legal benefits to quieting title in your favor to the land.

Adverse Possession

Adverse possession allows an individual to acquire title to land by utilizing that land openly, adversely and continuously for the statutory period. The party moving for quiet title has the burden of proof on an adverse possession claim and must prove that the actual and visible appropriation of land commenced and continued under a claim or right inconsistent with and hostile to the claim of another for a period of ten years. A.R.S. §§12-521 & 12-526. Basically, a claimant must use the land and let the world know you are claiming it as your own. A claimant only has to utilize the land as a typical land owner would. The adverse possession claimant need not fence in the property, although fencing often helps establish that a claimant was indeed claiming the land as their own. Adverse possession claims are supported with aerial photographs and affidavits of witnesses who are familiar with the use of the land.

Prescriptive Easements

An easement is an interest in land that allows one to utilize the land for a specific purpose. A prescriptive easement is an easement that ripens through the open, adverse and continuous use of land for the statutory period of ten years. Typically, a prescriptive easement occurs when a party has continuously used property of another for the sole purpose of ingress and egress for the statutory period. Generally, prescriptive easements come to fruition when a landowner tries to exclude a trespasser by blocking an access road or path that has been utilized for over ten years. The trespasser may have developed an easement by prescription and have a right to utilize the land as such.

Title Insurance and Adverse Possession

Unfortunately, if you are a defendant in an action related to adverse possession or a prescriptive easement, the standard title insurance policy usually excludes claims that are not discoverable from a search of the county records. Adverse uses of land are not recorded and your title insurance company typically will deny a request to either bring an adverse possession claim on your behalf or defend a claim related to an adverse possession.

Adverse possession results in a multitude of additional issues related to city zoning and obligations under your deed of trust. If you think that you have a claim for adverse possession or have been named as a party to a lawsuit related to adverse possession or any title claim, you should retain counsel as soon as possible.

This article is not intended to be specific legal advice. It only provides general legal information. You should consult an Arizona licensed attorney if you have a legal issue.  The Bainbridge Law Firm, L.L.C. is experienced in this area of law and are available for consultation. You may contact our Phoenix office at 602-274-6369.