Adverse possession is a legal process whereby a possessor (often called a “trespasser”) can come to own a plot of land over time. The underlying idea is that land should be used, and that someone who is actively possessing, improving, and occupying property should eventually gain title at the expense of an absent owner.
For example, if a landowner goes off and isn’t heard from again, a possessor can move onto the land, occupy it, improve it, and otherwise use it. After a period of time has elapsed, adverse possession gives the possessor title to it. It can also apply to portions of property, such as when a fence, shed, walkway, or other intrusion is made onto a neighboring piece of land.
South Dakota Adverse Possession Laws
South Dakota permits adverse possession when a claim is “actual, open, visible, notorious, continuous, and hostile” for a period of twenty years. This means that someone making an adverse possession claim must:
Statutes further require adverse possession claims to involve either substantial enclosure or regular cultivation or improvements to property. Essentially, someone who is on land and acts like it’s their own for twenty years can gain legal ownership.
While the twenty-year period is standard, the clock can be held whenever the actual owner is unavailable for specified reasons. Lawyers call this “tolling,” and the specified reasons for the owner’s unavailability are called “disabilities.” South Dakota tolls the twenty-year period if the title holder is younger than twenty-one years of age, mentally ill, or imprisoned on a criminal charge. Once a disability is lifted, the owner has ten years to defend his or her title over the property. Normally, this is accomplished by filing a lawsuit or simply evicting the occupant.
| Code Sections | 15-3-1, et seq. |
| Time Period Required for Occupation | 20 years and color of title: 20 years and color of title/payment of taxes: 10 years. |
| Time for Landowner to Challenge/Effect of Landowner’s Disability | 10 years, 20 years with landowner disability and 10 years after disability lifted. |
| Improvements | Improvements or enclosure are required for adverse possession claims. |
| Title from Tax Assessor | - |
Related Resources for Adverse Possession Laws
You can find more information related to adverse possession in our neighbor disputes, boundary disputes, and property boundaries sections. Establishing title through adverse possession is a lengthy and potentially complicated process. Defending against adverse possession claims can be important should you wish to sell or lease property later on. You can contact a South Dakota real estate lawyer for more information or assistance.
