Protecting Your Property from Adverse Possession in South Carolina

If you’re like most people, your home is your most valuable asset. It’s an excellent investment that not only gives you a comfortable place to live but also can potentially make some money in the future.

For that reason, it’s important to protect it at all costs. Being aware of the dangers of trespassers is an important part of that. Based on a little-known legal doctrine called adverse possession, your property is at risk. Here’s what you need to know about adverse protection laws in South Carolina.

What Is Adverse Possession in South Carolina?

At the core, adverse possession is a law that lets trespassers gain ownership of a property if the true owner fails to object within a certain amount of time. In layman’s terms, it’s often referred to as “squatter’s rights.”

In very few cases, this trespasser is someone who started living on your property when you were on an extended leave of absence. In most cases, however, it occurs when your neighbors use a portion of your land for their own use. In this scenario, they may only claim the portion of the land they’ve been using.

For example, your neighbors might plant trees, till the ground, or even build an outbuilding on the edge of your property. After a certain period of time, if you haven’t taken steps to prevent your neighbors’ use of the property, they may appeal the court for rights to that section.

“South Carolina courts continue to enforce this doctrine when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make him or her leave would seem unfair or create hardship,” explains Brian Farkas of Nolo. “In other words, if a trespasser spends enough time caring for a piece of property that the true owner has perhaps neglected, and the true owner makes no objection, a court might award ‘ownership’ to the trespasser.”

How to Acquire Title by Adverse Possession in South Carolina

Of course, acquiring the title to a property is not as simple as the squatter refusing to move. There are many requirements in South Carolina a trespasser, or disseisor as he/she is legally called, must follow before the title is theirs. Here are some of those rules:

  • The inhabitants must continuously occupy the land for at least 10 years, exercising control of the property as if they were the owners.
  • The property owner must be aware of the disseisor use of the property.
  • The use of the property must be considered “hostile” or against the interest of the title holder.
  • The disseisors cannot claim adverse protection if they share the land with the owner or with the public.
  • Tenants of the land cannot claim adverse possession from their landlord.

Elements to Prove to Establish Title by Adverse Possession

Claims of adverse possession cannot go unsubstantiated. Certain items must be presented to prove that the disseisor has rights to the property. Proving rights to adverse protection is actually very difficult, which is good news if you’re trying to protect your property.

“In order to have a legal claim under adverse possession, you will have to prove to the court that you knew the property was not yours but used it anyway AND the adjoining landowner thought the land was yours and never challenged your ownership and use of the land,” a South Carolina attorney told Avvo. “If it was a case of a mistaken line, or if the adjoining landowner knew you were using his property and permitted the use, the court would not award you the land under South Carolina law.”

Standard of Proof Required

The standard of proof is stringently in favor of the property owner. Unless it can be made very clear that the property owner was aware of the hostile use of their property, no court will grant adverse possession to the disseisor.

In the words of a judge who often tries adverse possession claims, “The person claiming the property by adverse possession must unfurl his flag on the land and keep it flying so that the owner may see if he wishes, that an enemy has invaded his domain and planted the flag of conquest.”

How to Protect Property from a Claim of Adverse Possession

A person must jump through many hoops before they can claim adverse possession of your land, but that doesn’t mean it won’t ever happen to you. Taking steps to protect your property may be critical to keeping full possession of your land.

The first step is obvious: Should you learn that someone is using your property without your permission, involve local authorities to have that person removed. Don’t delay this action. Ten years is a long time, but it can slip by faster than you think.

Additionally, you might see it as harmless for your neighbor to use a portion of your property that you don’t use, so you don’t say anything. However, think of the property values. When you live on an acre of property and your neighbor uses a quarter of an acre to plant a garden for a decade, they can claim that property as their own without paying for it. Your property values decline significantly thanks to this loss of land, and you’ll lose money in the long run.

You should also be aware of the laws protecting you involving adverse possession. For example, if you own property that’s divided into lots, the disseisors may only claim the lot that they’re using and not the entire property.

You might also grant someone who has fallen on hard times permission to live on a portion of your land out of the goodness of your heart. The state will protect you from claims of adverse protection in this case, but it’s best to draw up a contract that outlines the terms of the person living there so that you may discontinue their tenancy at any time.

When you’re dealing with a property dispute in South Carolina, give us a call. We’ll walk you through your rights and help you claim property that is rightfully yours.

2018-11-26T17:43:23+00:00November 26th, 2018|Categories: Real Estate|Tags: , |