Idaho Adverse Possession Law

Adverse possession is a legal doctrine that can assist in resolving disputes over ownership of a parcel of real estate. Usually the dispute occurs when the person holding the deed to the property has not physically occupied the property for an extended period of time, and another party has occupied the property instead. Sometimes the dispute occurs because the legal descriptions in the deeds to adjoining parcels of property either overlap with each other, do not match up (i.e. there is a gap between the legal descriptions), or contain another type of surprise. These disputes are sometimes resolved by the boundary by agreement doctrine, and other times by the doctrine of adverse possession.

In a property dispute, the person holding the deed to a parcel of property is presumed to be the lawful owner. It is the burden of a person who does not have a deed to the property to prove that they own the property by adverse possession. In Idaho, the adverse possession doctrine is a combination of both statutory and common law.

To prove ownership by adverse possession, the claimant must prove, by clear and convincing evidence, the following elements:

1. Possession of the property. The person claiming title through adverse possession must have physically occupied the property. The Idaho legislature has clarified that possession requires protecting the land by a substantial enclosure or regularly cultivating or improving the land. Idaho Code § 5-210.
2. In an adverse, open, and notorious manner.
3. Exclusive of other rights.
4. Payment of taxes.
5. For the statutory period. Up until 2006 the statutory period was 5 years. Since then 20 years of possession has been required. Idaho Code § 5-210. Thus, proving adverse possession requires evidence of the five elements for a continuous period of five years prior to 2006 or twenty years after 2006.

To prove ownership by adverse possession based on a written instrument which purports to give title, a claimant must prove "continued occupation and possession" of the property for the statutory period and payment of taxes. Idaho Code § 5-207.

Payment of taxes and the long time period for possession of twenty years make adverse possession in Idaho a lengthy and involved process. Use of the property for purposes of claiming adverse possession cannot be in secret, rather an adverse possessor must make it obvious that they are using the property as a true owner would, and in a manner that is hostile to all other possible owners. Permission from a property owner negates the hostility element. Additionally, the person in possession must either enclose, cultivate, or improve the property. The person claiming to have met the requirements of adverse possession must prove their compliance by clear and satisfactory evidence, which is a high legal standard to meet. In sum, the law in Idaho is designed to favor property owners to the exclusion of adverse possessors based on the time and number of difficult requirements that must be proven for adverse possession.

The doctrine of adverse possession may enable the occupant to prove ownership of the property. This is sometimes called a "squatter's right" since the occupant took possession of the property without having a deed to the property.

While the concept and legal requirements of adverse may appear straight-forward in the abstract, applying adverse possession law in Idaho to particular circumstances calls for the expertise of a real estate attorney. Complicated law and complicated circumstances can be understood and provided for by an attorney experienced in this area of law. Without a correct understanding of adverse possession, an Idaho property owner may easily have an incorrect belief that they own a parcel of land. A quiet title action allows for an individual who acquired title to property through adverse possession to receive clean legal title to property in a way that can be effectively sold to others if desired, and an attorney can assist property owners with such a legal action.

Racine Olson features a large group of attorneys that include specialists in the area of real estate law. The firm has assisted many clients with adverse possession issues in the past and places a premium on providing excellent service to clients to solve their legal problem in an efficient manner. Partner TJ Budge practice real estate law and can advise on how adverse possession may apply to real property you own. Please contact the firm at 208.232.6101 or e-mail at tj@racineolson.com to discuss an Idaho adverse possession legal issue.