The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette.
My neighbor says he had a survey done recently that shows that my shed is over his property line. He says I have to remove it. I built the shed 25 years ago, and nobody has ever complained. Isn’t that long enough to make it my property?
Probably. It takes 20 years to acquire legal title to real estate by adverse possession. If your possession has really been “adverse,” you own it.
Adverse possession is the only example of squatter’s rights in Illinois property law. Whether that possession begins by innocent mistake or illegal trespass, 20 years makes you the legal landowner.
But, not just any 20 years of possession. Illinois courts require 5 essential ingredients. Your possession must be: “(1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive possession of the premises, (5) under claim of title inconsistent with that of the true owner.”
So, if you take possession with the original property owner’s permission, it’s not adverse. It could become adverse, but would require solid proof that the original permission had been withdrawn or cancelled. Without that proof, don’t spend 20 years expecting adverse possession to turn you into an owner.
The idea is that your possession must clearly notify the world that you’re in possession, and claim the land as yours. That real-life notice, rather than the legal paper notice down at the County Recorder’s office, warns other possible owners that you’re challenging their claim.
Fences, signs, or improvements aren’t required. What’s important is that your “acts of dominion...indicate to persons residing in the immediate neighborhood who has the exclusive management and control of the land.”
Your possession starts the clock running on the 20 year statute of limitation for filing lawsuits to recover land. If the true owner doesn’t sue to kick you out within the 20 year limit, that land is your land.
As the Illinois Supreme Court put it: “If the owner permits the occupation of his land for a period of twenty years by a party asserting ownership he is barred by the statute from making an entry or bringing an action to regain possession.”
So, if someone sued to kick you out after you’d been there 20 years, and you could prove those 5 essential elements, they’d lose. If you sued them to declare yourself the owner, you should win.
The title you acquire through adverse possession may be legal, but doesn’t happen automatically. If ownership is argued, it’ll take a court case, and a judge’s order, to officially recognize your rights, and make them enforceable. That order could become official, publicly recorded title.
Other kinds of adverse possession are possible. If you have “color of title,” and pay taxes for 7 years, you can acquire legal title. (If the land’s not vacant, you must be in actual possession for that 7 years, too.)
“Color of title” can be many things, but usually means a written document, like a contract, deed, or will.
Updated: May 2018