## Adverse possession in South Dakota **Adverse possession** lets someone gain legal title to land they don't own — by occupying it openly for a long enough period without permission. The doctrine seems strange ("steal land?") but exists for ancient policy reasons: rewarding productive use, settling stale boundary disputes, and clearing title. ### South Dakota requirements - **Required period:** 20 years (10 with color of title + paid taxes) - **Color of title** (formal but defective deed): 10 years ## The five universal elements ("OCEAN") Every state requires possession to be: **O — Open and notorious.** Visible enough that a reasonable owner would know about it. Hidden use doesn't count. **C — Continuous.** Uninterrupted for the statutory period. Sporadic use, or a year-long absence in the middle, breaks the chain. **E — Exclusive.** The possessor uses the land alone, not sharing with the true owner or the public. **A — Actual.** Physical use of the land — building structures, fencing, farming, residing. Just "claiming" doesn't count. **N — Notorious / Hostile.** Without the owner's permission. "Hostile" doesn't mean angry — just that the use is inconsistent with the owner's rights. Many states add a sixth requirement: **paying property taxes** during the period. ## Color of title — shorter periods Many states reduce the required period if the possessor has "color of title" — a deed that LOOKS valid but has a defect (forged, signed by wrong owner, badly recorded). Color of title: - Shortens the required period (often dramatically) - Lets the possessor claim ALL the land described in the defective deed (not just what they actually used) - Often requires that property taxes be paid during the shortened period ## Tacking Different possessors can combine their possession periods ("tacking") if there's privity (sale, gift, or inheritance) between them. Without privity, a new possessor starts the clock over. ## How adverse possession typically arises - **Boundary disputes** — fence built in the wrong place; long-time use across a property line - **Squatter cases** — someone occupies abandoned property - **Chain-of-title problems** — defective deeds that have gone unchallenged - **Family / inheritance disputes** — long-time family use without proper transfer - **Easement-by-prescription** — adjacent doctrine for non-possessory rights (driveway, path) ## Common defenses for the true owner - **Permission** — possession with the owner's permission isn't "hostile" - **Tolled possession** — owner's incapacity, military service, minority pause the clock - **Government property** — generally not subject to adverse possession ("nullum tempus") - **Insufficient continuity** — gaps in use - **Not exclusive** — owner used it too, or the public used it - **Not open / notorious** — possession was hidden - **Failure to pay taxes** — where state requires it - **Lack of color of title** — where claimed period requires it ## Quiet-title actions An adverse possessor doesn't automatically own the property — they must usually file a **quiet-title lawsuit** to formally establish ownership. The court reviews the evidence, and if all elements are met, issues a judgment that confirms title and can be recorded. ## Boundary fence rule Some states have a separate **boundary by acquiescence** doctrine — when neighbors treat a particular line (often a fence) as the boundary for a long period (typically 7-20 years), the line becomes legally binding even if it doesn't match the recorded deed. ## Easements by prescription Similar to adverse possession but for non-possessory rights — using someone's land for access (driveway, footpath, utility line) for the statutory period gives you an easement (a right to keep using) without ownership. ## What property owners should do to prevent adverse possession - **Inspect property regularly** — at least annually for vacant land - **Post "no trespassing" signs** - **Grant permission in writing** — converts "hostile" into permissive (which doesn't ripen into adverse possession) - **File trespass actions** if needed - **Keep current on taxes** - **Have property surveyed** to know exact boundaries - **Maintain fences** ## What you should do If you think you may have an adverse-possession claim — or you're an owner who believes someone is encroaching on your property — talk to a South Dakota real-estate attorney. These cases are evidence-intensive and require a quiet-title lawsuit to make the claim official. Most South Dakota real-estate attorneys offer paid initial consultations. --- *This guide is general information about South Dakota law as of early 2026 and is not legal advice. Adverse-possession requirements vary by state and have many edge cases (tolling, government land, color of title, boundary by acquiescence). Talk to a licensed South Dakota attorney about your specific situation.*