Q: I have a question regarding adverse possession. My mother-in-law has been living in her family home for more than 20 years. The home was in her grandmother’s name, the person who raised her. When her grandmother passed, she moved into the home, took over paying the property taxes and has paid for everything in the home ever since.
We’ve recently started fixing up the home for her and realized that the property wasn’t in her name but in her grandmother’s name. Should we legally try to have the home put in her name, given the circumstances?
A: Well, for you to claim ownership under most adverse possession laws, you must have lived in the home for more than 21 years, must have owned the home to the exclusion of all others, treated the home as if it was your own, paid all the expenses of the home, including real estate taxes, and have claimed ownership of the home.
These are the basic elements you’d have to prove for adverse possession. And, as you can see, it’s a pretty high bar.
Some states may differ slightly on some of the issues, but the basis for claiming ownership of someone else’s property is that the other person has “forgotten” about this property and you have “claimed” it as your own.
Your mother-in-law may or may not satisfy the claim of ownership right to the home. If she acknowledged that the home wasn’t hers but still her grandmother’s, she might fail to qualify in her claim to adverse possession. Your mother-in-law might want to talk to an attorney about her situation and have that attorney review the requirements for adverse possession in her state.
It’s not uncommon for family members to live in a relative’s home after that relative dies. But living in the home does not change the ownership of the home. If other family members have allowed your mother-in-law to reside in the home, she hasn’t satisfied one of the basic requirements of adverse possession. Possession of the home must not be consensual; it must be adverse to the rightful owner’s rights to own and occupy the home.
The real question is whether your mother-in-law rightfully inherited all or part of the home when her grandmother died. If she became part owner of the property, then her claim would be against the other rightful owners of the home. She’d probably have to prove that she has never let other family members come to the home and has always excluded them. She might have a hard time proving that if relatives have come and stayed during holidays or family events, such as weddings and funerals.
She will have to seek legal counsel to figure out if she can claim adverse possession to the home or whether she has any other rights to the home. If her grandmother left a will or other documentation that left your mother-in-law the home, she might have a greater chance of becoming the sole owner of the home. We suspect, however, that you’re asking because you believe that other family members will seek ownership of the home if there is money to be had from the sale.
On a separate issue, if your mother-in-law has had an ownership interest in the property and has made improvements or repairs to the home over the years, she might be entitled to full reimbursement for those improvements or repairs when the home is sold. It could add up to a nice chunk of change.
Finally, the law doesn’t like it when properties are without rightful owners. There may be other statutes on the books that could allow your mother-in-law to claim ownership of the home, but she’d have to explore that option with an attorney with extensive knowledge on property titles, ownership rights and real estate law.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.