Adverse possession in Arizona is based on a statute of limitation, A.R.S. § 12-526. The statute requires a person seeking to recover land from someone else who has peaceable and adverse possession to commence an action within ten years after the cause of action accrues. That time may be shortened in certain circumstances—if the adverse possessor has been paying taxes on the land and has color of title, the action must be commenced within three years.
The adverse possession must be actual possession that is open and notorious, hostile, continuous, under a claim of right, and exclusive. The exclusive possession element requires the adverse possessor to be the only one possessing the land. Actual possession requires actually entering and controlling the property, not merely visit it occasionally.
Similarly, the open and notorious element requires that you visibly possess the land. You cannot sneak onto the land at night when nobody is around and then claim that you possess it. Arizona cases have described this element by stating that the adverse possessor must establish that he used the land as an ordinary owner of the same type of land would. Overson v. Cowley, 136 Ariz. 60, 664 P.2d 210, (App. 1982).
Overson also noted that there is no requirement that the adverse possessor’s use must be the only practicable use to which the land in question might be devoted. In that case, the adverse possessor used the land for cattle grazing, and was not prevented from claiming adverse possession solely because the land might be used for other purposes.
To be considered hostile, the possession the land must be without the owner’s permission. Generally, the adverse possessor must be presenting themself as the owner of the property to the public, but if there is express or implied permission from the land owner, then an adverse possession claim will fail.
Arizona does not require the adverse possessor to have a trespasser’s intent. A person who makes use of land mistakenly believing it to be his own still satisfies the hostility requirement of adverse possession. Inch v. McPherson, 176 Ariz. 132, 859 P.2d 755, (1992)
Finally, the possession of the land must be continuous for the statutory period. Possession that fails to satisfy this requirement will forfeit the right to adverse possession, and may make possessor guilty of trespassing on the land.
Chernoff Law handles real estate litigation matters throughout Arizona. Contact us to discuss your adverse possession or prescriptive easement claims by calling 480-719-7307 to discuss your real estate matters.