In Arizona, Adverse Possession Not Usually Granted Against Government

A homeowner recently received a notification from the Arizona Department of Transportation that his fence is blocking ADOT’s highway right-of-way. The homeowner had fenced off this right-of-way least 10 years age, but ADOT is demanding that the fence be removed from the right-of-way. Is there an Arizona real estate law that allows ADOT to force the removal of the fence after it has been up for more than 10 years?

Generally, title to any real property interest such as a right-of-way owned by the state or other governmental entity cannot be acquired by adverse possession. Therefore, even though ADOT has not used the right-of-way for more than 10 years, ADOT probably can require the homeowner to remove the fence.

Note: The principle of adverse possession goes back to early English common law. The theory is “use it or lose it.” In other words, if the landowner is not using the land and another person is using the land without the landowner’s permission, the other person after a reasonable time (in Arizona generally 10 years) should be entitled to ownership of the land. clgz05

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