It sounds strange the first time you hear it: someone can use a piece of your land long enough that they gain the right to own it. That is adverse possession, and while it is harder to prove than people fear, it is worth understanding, especially if there is an old fence or a long-used path near your line. Here is how adverse possession works in Virginia and how to protect your land.
Written by Adam L. Engel, Esq., Principal and real estate attorney at Prime Title & Escrow
What adverse possession is
Adverse possession is a long-standing rule that lets a person become the legal owner of land they have occupied as if it were their own, openly and without the owner’s permission, for a long enough stretch of time. The idea behind it is that land should not sit in limbo forever when someone has plainly been using and maintaining it while the record owner did nothing.
What it takes in Virginia
Virginia sets the period at fifteen years under Va. Code 8.01-236, and the possession has to check every box for that whole time. In general it must be:
- Actual, meaning the person is really using the land, not just talking about it.
- Open and notorious, meaning the use is visible, not hidden, so the owner could have noticed.
- Exclusive, meaning the person is using it as an owner would, not sharing it with the true owner.
- Hostile, meaning without the owner’s permission.
- Continuous for the full fifteen years, without a meaningful break.
Miss any one element, or any year, and the claim fails. That is a real hurdle, which is why most situations never get close to a successful claim.
Here is the simplest protection. If you give a neighbor written permission to use the strip, their use is permissive, not hostile, and the adverse possession clock does not run. A short agreement, recorded in the land records, both allows the neighborly use and protects your ownership. Permission is the difference between a favor and a future claim.
Where it usually comes up
In practice, adverse possession rarely shows up as someone trying to take a whole lot. It shows up at the edges, a fence built years ago a few feet onto the neighbor’s side, a driveway that strays over the line, a strip one owner has mowed and treated as theirs for decades. These surface during a sale or a survey, often as an encroachment or boundary question, and the adverse possession angle is part of sorting out who has rights to that strip.
A claim requires proving every element for the full fifteen years, in court, with evidence. That is a high bar, and most fence-line situations are resolved long before anyone tries to meet it, usually with a current survey and a recorded boundary agreement. The takeaway is not to panic, it is to address a long-standing encroachment rather than let the years keep running.
How to protect your land
Three habits keep you safe. Know your boundaries, ideally with a survey, so you are not guessing. Address encroachments when you notice them instead of letting them sit. And when you are happy to let a neighbor use a corner of your land, put the permission in writing and record it, so the use never ripens into a claim. If you are buying, a survey and a careful title review flag any long-standing use before it becomes your problem, and your owner’s title insurance policy is part of that protection.
How I handle it
When a long-standing use or encroachment turns up in a sale or purchase, I look at the survey and the records, explain whether there is a real adverse possession concern, and prepare the right fix, often a permission agreement or a boundary line agreement, recorded so the question is settled. The point is to put the matter to rest cleanly, so it does not follow the property to the next owner.
Tell me what is going on and I will help you protect your property, from reviewing the survey to preparing and recording the agreement that settles it, in Virginia or West Virginia.
Get Your Free Quoteor call (703) 552-4155Frequently asked questions
What is adverse possession?
Adverse possession is a legal rule that lets a person gain ownership of land they have occupied openly and continuously, without the owner’s permission, for a long enough period. It is how a long-standing fence or use can eventually turn into a claim of ownership.
How long does adverse possession take in Virginia?
Virginia requires fifteen years of continuous possession under Va. Code 8.01-236, along with the other elements. The use must run for the full period without a break to support a claim.
What are the elements of adverse possession in Virginia?
The possession generally must be actual, open and notorious, exclusive, hostile, meaning without the owner’s permission, and continuous for fifteen years. Missing any element defeats the claim.
How do I stop someone from claiming my land?
Know your boundaries with a current survey, address encroachments rather than ignoring them, and give written permission for any use you allow, since permission makes the use permissive instead of hostile and stops the clock. A recorded agreement can document it.
Does giving permission stop adverse possession?
Yes. If you give a neighbor permission to use the land, their use is permissive, not hostile, so the adverse possession clock does not run. A short written, recorded agreement is a simple way to protect your property.
How is an adverse possession claim proven?
It is decided in court, where the person claiming the land must prove every element for the full fifteen years. Because that is a high bar, most fence-line and boundary situations are resolved with a survey and a recorded agreement long before a claim is litigated.
This article is general information about adverse possession in Virginia. It is not legal advice for your specific situation, and any real claim or defense depends on the facts and the records. Please confirm the details with me directly.