Adverse Possession – Proposed Federal Law would override State Law per SCRA
State law sets a specific period of time after which a party may asset a claim for adverse possession. The United States House of Representatives is considering legislation that would exclude from that calculation the period that a service member is in active duty.
Briefly stated, adverse possession is a legal theory whereby a person might claim that he owns real estate, in spite of a deed showing that the property belongs to someone else. There must be a showing that the person possessed the property openly, without permission, and continuously for a certain period of time (which varies from state to state). A typical example would be where a person had a fenced-in yard and the fence was over the property line. After, say, 15 years, the person could ask a court to declare that he owned his entire yard, including the portion of the property line. Another, rarer example might be that a person occupying a house under the same circumstances, after 15 years, could claim ownership of the house, even though the recorded deed does not mention his name.
The Servicemembers Civil Relief Act (the “SCRA” at 50 U.S.C. §§ 3901-4043) provides various protections to servicemembers to ensure that the servicemembers can perform their important functions with less worry about some business and legal affairs. For example, the SCRA limits interest rates on certain obligations to 6%, has protections against foreclosures, and allows cancellation of some leases.
The U.S. House of Representatives is considering Bill H.R. 2334 (copy of initial, proposed version HERE), the Servicemember Residence Protection Act, which would amend the SCRA to “exclude the period of time that a member of the armed forces serves in the military from a state’s or other jurisdiction’s calculation of a period of adverse possession. (That is, the determination of the period of time after which the service member may lose ownership of their real property to another person who possesses the property.)” Congressional Budget Office Report. If passed, the federal exclusion of time would preempt all State statutes and become law throughout the country.
The proposed legislation provides:
‘‘Any State law establishing squatter’s rights shall not apply to premises—
‘‘(1) owned by a servicemember; and
‘‘(2) occupied by a squatter during a period of military service of such servicemember.’’. [emphasis added].
The italicized wording is designed to provide the exclusion of time from the calculation.
The purpose of the Bill is to offer protection to servicemembers from “squatters” who may claim ownership of property when the servicemember is not available or able to fully manage their affairs because of their deployment.
Under current law and practice, Plaintiffs submit SCRA Affidavits or certifications that the defendant does not have SCRA protections. Sources of that information may be the U.S. Department of Defense or private contractors such as the Servicemembers Civil Relief Act Centralized Verification Service (“SCRAcvs”).
If the Bill is passed, plaintiffs in adverse possession actions would likely need to supply a separate affidavit under the SCRA showing that an additional inquiry was made to confirm that the property was not owned by a person on active duty during the statutory time period.
This may raise some concerns. Let us assume that the State’s time period for vesting is 15 years. If the property was owned by multiple people over the 15 years, the Plaintiff may need to research all owners to determine that none were in military service during that period.
Some issues might be resolved if the clause “‘‘(1) owned by a servicemember” were clarified to refer only to the specific owner(s) of record at the time a suit were filed; however, when adverse possessory actions are filed, the caption of the suit may include something similar to “all others who may have an interest”.
When a name is run on the SCRAcvs, a specific effective date is entered, called the “Active Duty Status Date”. In other words, the inquiry is “was John Doe covered by the SCRA as of August 9, 2025?”. The response given covers that date and 367 days prior. If you want to cover a span of time, multiple requests would have to be submitted, each with a different Active Duty Status Dates to cover the entire period.
The Congressional Budget Office reports that “the Bill would require the Department of Veterans Affairs to update its website to include information pertaining to service members’ property and tenancy rights. Based on similar efforts, CBO estimates that the requirement would increase spending subject to appropriation by less than $500,000 over the 2025‑2035 period.”
This might set up a secondary source of information for this particular inquiry, but the CBO’s cost estimate may be low, given the complexity of the information that would need to be maintained and the availability of the source information. For example, is someone going to now ask all servicemembers for addresses of properties they own? What about retired servicemembers to ensure that their periods of service are excluded from the 15 years? What if the servicemember had a name change? Will that data base be indexed by property (and, if so, by address, parcel, lot, etc.)?
To monitor the progress of the Bill, click HERE.
