Adverse Possession in Indiana: How to Protect Your Real Estate

Adverse Possession in Indiana: How to Protect Your Real Estate

There are legal ways for someone to acquire valid title to real property owned by someone else without purchasing it. Adverse possession in Indiana, and in general, is a theory in law that allows a party, after having met certain common law and statutory elements, to become the valid legal owner of a parcel of land. Adverse possession has a long history, dating as far back as 1066 in England during the Norman Conquest.

What You Need to Know about Adverse Possession in Indiana

Understanding the basics of Indiana adverse possession laws is important if you want to know how to protect your real estate. This is equally true whether you are in adverse possession of property you believe is rightfully yours or if you are mounting defenses to adverse possession and protecting real estate in Indiana that is being adversely possessed.

Generally, at common law adverse possession requires a party to meet these elements: open and notorious, hostile or adverse, exclusive, visible, actual, under claim of ownership, along with continuous for the typical statutory time period of 10 years.

How Is Adverse Possession in Indiana Unique?

Each state may impose additional statutory requirements. Indiana adverse possession laws impose an additional statutory requirement and have altered the language of the elements. Under I.C. § 32-21-7-1, one additional requirement for Indiana adverse possession is that the adverse possessor, in good faith, needs to pay all taxes due on the land during the period the adverse possessor claims to have possessed the land adversely.

Uniquely though, this statute requiring the payment of taxes was enacted in 1927 due to a large number of squatters claiming title to land; this statute has rarely been applied to many adverse possession decisions.

In fact, the Indiana Supreme Court in Fraley v. Minger interpreted the statute as being fulfilled if the claimant has “substantially compl[ied] with the requirement for payment of taxes.” The court even stated that, “where the payment of taxes will not serve as notice to the recorded title holder that someone is in possession of his land and claiming an interest adverse to his interest in the land, the statute requiring the payment of taxes is not a supplementary element of adverse possession.”

However, since that decision, the Indiana Supreme Court has restrained itself from completely abandoning the tax statute and now follows the “substantial compliance” requirement as articulated in the earlier case of Echterling v. Kalvaitis.

Additional Nuances in Indiana Adverse Possession Laws

Further, in Fraley v. Minger, the Indiana Supreme Court restructured and renamed the common law elements for adverse possession as follows:

  • Control;
  • Intent;
  • Notice; and
  • Duration.

The claimant bears the burden of proof in defenses to adverse possession, and the standard is met by clear and convincing evidence.

Common Law Elements for Adverse Possession in Indiana

In order to prevail on the control element, a claimant must show “a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of ‘actual,’ and in some ways ‘exclusive’ possession).

In order to show intent, the adverse possessor must establish intent to claim of full ownership of the land that would be adverse to the rights of others, including the legal owner (“reflecting the former elements of ‘claim of right,’ ‘exclusive,’ ‘hostile,’ and ‘adverse’).”

The third element the claimant must establish is notice, and the adverse possessor’s actions regarding the land must be sufficient to give the legal owner actual or constructive notice of the adverse possessor’s intent and exclusive control.

The last element an adverse possessor needs to establish is duration, and the adverse possessor must simply satisfy all of the other elements continuously for the required period of time. Indiana changed the required period of time from twenty years to ten years in 1951.

Protecting Real Estate in Indiana, from Either Side of the Fence

If a homeowner in Indiana wanted to adverse possess a parcel of land, the elements that homeowner would need to meet are control, intent, notice, and duration for 10 period of years, along with a substantial compliance with the payment of taxes due on the disputed tract of land.

If a homeowner wanted to eject an adverse possessor, he or she would need to bring either an action for ejectment, trespass, injunction, or any other remedy regarding the non-permissive occupation of the owner’s property.

To know how to protect your real estate, it is important to understand the nuances and requirements of adverse possession in Indiana. Corey Meridew is a Partner at Camden & Meridew, P.C. who practices in the areas of real estate, appellate law, business litigation, consumer protection and utility law. If you need assistance understanding possible defenses to adverse possession or protecting real estate in Indiana, contact our office at 317-770-0000 or complete our online contact form today.

 

This website supplies general information about the law but it is provided for informational purposes only. This content does not create an attorney-client relationship and more importantly is not meant to constitute legal advice. You should not act on any of the information contained herein without first consulting an attorney.

7 Comments

  1. Robin Harper

    I have a issue regarding this adverse possession law

  2. Robin Harper

    I’m 40 yr home owner the house next to door was sold and the new owner is claiming is also owns our front yard and is intending to build a 3 car garage that will enclose our home at 6530 W 62nd st 46278
    My husband and I need legal help

  3. Can a neighbor just move a fence outward because they want to acquire more land?

  4. I bought my house for $10,000 dollars 10 years ago and have lived here for 10 straight years by my self. My honest mistake was putting a live long friend name on it,,. Since then it has went through 4 different names with out my permission.

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