Adverse Possession in Montana: Five Years and Every Tax Bill
Reviewed by DocDraft Legal Team · Montana · Last updated October 5, 2026
Montana answers the hardest question about adverse possession in a section heading. Adverse possession is how the law moves ownership of land to a person who has occupied it without owning it, and the Montana section that governs proof is headed Occupancy and payment of taxes necessary to prove adverse possession. The text matches the heading: in no case shall adverse possessions be considered established under the code unless the land has been occupied and claimed for a period of 5 years continuously and the party or persons, their predecessors, and grantors have during such period paid all the taxes, state, county, or municipal, which have been legally levied and assessed upon the land (Mont. Code Ann. 70-19-411). Because that section reaches any claim under the code, it applies whether or not a deed is involved. The period itself is five years (Mont. Code Ann. 70-19-401), and the holder of legal title is presumed to have been in possession, with anyone else's occupation deemed subordinate to that title until five adverse years are shown (Mont. Code Ann. 70-19-404). Montana then adds rules other states do not. A former tenant's possession stays the landlord's for five years after the tenancy ends or after the last rent payment (Mont. Code Ann. 70-19-412). Recreational use of surface waters, their streambeds, their banks up to the ordinary high water mark, and portages around barriers can never create a prescriptive easement (Mont. Code Ann. 23-2-322). Occupancy of a public way or ground the state dedicated to public use confers no title (Mont. Code Ann. 70-19-301). Attorney review is available through DocDraft.
Find out where you stand in Montana
Which side of the boundary question are you on?
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How long does adverse possession take in Montana?
Five years. Mont. Code Ann. 70-19-401 provides that an action for the recovery of real property or for the possession of real property may not be maintained unless it appears that the plaintiff, or the plaintiff's ancestor, predecessor or grantor, was seized or possessed of the property within 5 years before the action began.
Do you have to pay the property taxes to claim adverse possession in Montana?
Yes. Mont. Code Ann. 70-19-411 provides that in no case shall adverse possessions be considered established under the code unless the land was occupied and claimed for 5 years continuously and the party, their predecessors and grantors paid during that period all taxes, state, county or municipal, legally levied and assessed on the land.
Does a fence or cultivation satisfy Montana's occupation requirement?
Without a written instrument, those are the only two routes. Mont. Code Ann. 70-19-410 deems land possessed and occupied in the following cases only: where it has been protected by a substantial enclosure, or where it has been usually cultivated or improved. Grazing an unfenced tract is not on that list.
Can a former tenant in Montana start an adverse possession clock against the landlord?
Not immediately. Mont. Code Ann. 70-19-412 treats the tenant's possession as the landlord's possession until 5 years from termination of the tenancy, or where there was no written lease, 5 years from the last payment of rent, even if the tenant acquired another title or claimed to hold adversely.
Montana adverse possession at a glance
Adverse possession is the transfer of land ownership to a person who has occupied the land without holding its title, once every statutory requirement has been met for the whole statutory run. Montana sets that run at five years (Mont. Code Ann. 70-19-401) and calls the resulting interest a title by prescription (Mont. Code Ann. 70-19-405). The requirement that decides most Montana claims is the tax one. No adverse possession is established under the code unless the land was occupied and claimed for five continuous years and the claimant, with predecessors and grantors, paid all state, county or municipal taxes legally levied and assessed on it across that period (Mont. Code Ann. 70-19-411). The statute names no particular document as proof. Ground a state dedicated to public use is outside any claim (Mont. Code Ann. 70-19-301).
A grazing lease that ended, and a corner nobody paid tax on
Start from a lease that ended, because Montana keeps the clock in the landlord's hands for five years afterwards. Say a Judith Basin grazing lease terminated in 2017 and the former lessee kept a nine acre fenced corner, wintering cattle on it every year since. Mont. Code Ann. 70-19-412 treats that tenant's possession as the landlord's until five years from the termination, so the earliest the five years could even begin running is 2022. Set that aside and the tax element still has to be met. The corner is assessed inside the ranch's own parcel number, and the treasurer's history shows the owner paying every year. Mont. Code Ann. 70-19-411 requires the claimant to have paid those taxes across the five years. How those two sections apply here is for the district court.
Relevant Laws
Mont. Code Ann. 70-19-411 (occupancy and payment of taxes)
Provides that in no case shall adverse possessions be considered established under the code unless it is shown that the land has been occupied and claimed for a period of 5 years continuously and the party or persons, their predecessors and grantors, have during that period paid all the taxes, state, county or municipal, which have been legally levied and assessed upon the land. Because it reaches any claim under the code, it applies to the written instrument route as well as the route without one.
Mont. Code Ann. 70-19-401 (five year period)
Provides that an action for the recovery of real property or for the possession of real property may not be maintained unless it appears that the plaintiff, or the plaintiff's ancestor, predecessor or grantor, was seized or possessed of the property in question within 5 years before the commencement of the action. The Legislature's own history note records Cal. C. Civ. Proc. Sec. 318 as the source provision.
Mont. Code Ann. 70-19-404 (presumption favoring the record titleholder)
Provides that in every action for the recovery of real property or its possession, the person establishing a legal title to the property is presumed to have been possessed of it within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title unless the property has been held and possessed adversely to that legal title for 5 years before the action began.
Mont. Code Ann. 70-19-410 (occupation without a written instrument)
Provides that for the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment or decree, land is deemed to have been possessed and occupied in the following cases only: where it has been protected by a substantial enclosure, or where it has been usually cultivated or improved.
Mont. Code Ann. 70-19-409 (extent of land held adversely)
Provides that where there has been an actual continued occupation of land under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied and no other is deemed to have been held adversely. This is Montana's statutory wording for the actual, continuous and exclusive requirements and for the absence of constructive possession.
Mont. Code Ann. 70-19-407 and 70-19-408 (claim founded on an instrument or judgment)
Section 70-19-407 provides that where the occupant entered under claim of title founded on a written instrument or on a decree or judgment of a competent court and occupied the property for 5 years, the property included is considered held adversely, except that possession of one lot in a tract divided into lots is not possession of another lot. Section 70-19-408 lists three qualifying cases, adding use for the supply of fuel or fencing timber for husbandry, pasturage or the ordinary use of the occupant, and deems the uncleared or unenclosed portion of a partly improved known farm or single lot occupied for the same length of time as the improved part.
Mont. Code Ann. 70-19-412 (landlord and tenant)
Provides that when the relation of landlord and tenant has existed, the possession of the tenant is considered the possession of the landlord until the expiration of 5 years from the termination of the tenancy, or where there has been no written lease, until 5 years from the time of the last payment of rent, notwithstanding that the tenant may have acquired another title or claimed to hold adversely to the landlord, and that the enumerated presumptions may not be made after those periods.
Mont. Code Ann. 70-19-405 and 70-19-406 (title by prescription, and simple occupancy)
Section 70-19-405 provides that except as provided in section 23-2-322, occupancy for the period prescribed by the chapter as sufficient to bar an action for recovery of the property confers a title denominated a title by prescription, sufficient against all. Section 70-19-406 provides that occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will or succession.
Mont. Code Ann. 23-2-322 (no prescriptive easement from recreational water use)
Defines a prescriptive easement as a right to use the property of another acquired by open, exclusive, notorious, hostile, adverse, continuous and uninterrupted use for a period of 5 years, and provides that a prescriptive easement cannot be acquired through recreational use of surface waters, including the streambeds underlying them, the banks up to the ordinary high water mark, or any portage over and around barriers, or through the entering or crossing of private property to reach surface waters.
Mont. Code Ann. 70-19-301 and 70-19-302 (state lands and state actions)
Section 70-19-301 applies parts 3 and 4 to lands the state sold and conveyed before July 1, 1955 for valid consideration where the state was not then precluded from selling them, and provides that an occupant of a public way or other ground dedicated or appropriated by the state to public use and not subject to sale may not acquire any title to it by occupancy. Section 70-19-302 provides that the state will not sue in respect to real property by reason of its right or title unless the right or title accrued within 10 years, or the state or those from whom it claims received the rents and profits within 10 years.
Mont. Code Ann. 70-19-403 and 70-19-413 (entry, and disabilities)
Section 70-19-403 provides that no entry upon real estate is deemed sufficient or valid as a claim unless an action is commenced on it within 1 year after the entry and within 5 years from when the right to make it descended or accrued. Section 70-19-413 excludes from the limitation period the time a person entitled to sue was under the age of majority, committed pursuant to section 53-21-127, or imprisoned on a criminal charge or in execution upon conviction for a term of less than life, and allows 5 years after the disability ceases or after the death of that person under the disability.
Mont. Code Ann. 70-28-101, 70-28-103, 70-28-106 and 70-28-110 (quieting title)
Section 70-28-101 authorizes a quiet title action by any person, whether in actual possession or not, claiming title to real estate against known and unknown claimants. Section 70-28-103 fixes venue in the county where the real estate or a portion of it sits. Section 70-28-106 requires the plaintiff, before any order for publication of summons under Rule 4, M.R.Civ.P., to file a notice of the pendency of the action with the clerk and recorder of each county where the property sits, containing the court title, the full caption, a complete property description and a statement of the relief sought. Section 70-28-110 allows the value of permanent improvements as a setoff against damages where a defendant holding under color of title adversely to the plaintiff made them in good faith.
Regional Variances
Montana adverse possession rules at a glance
Statutory period
Five years. An action for the recovery or possession of real property may not be maintained unless the plaintiff or a predecessor was seized or possessed within 5 years before the action (Mont. Code Ann. 70-19-401), and the adverse holding must run 5 years continuously (Mont. Code Ann. 70-19-411).
Property taxes
An element in every case, not a shortcut. In no case is adverse possession established under the code unless all taxes, state, county or municipal, legally levied and assessed on the land were paid by the claimant, predecessors and grantors during the five year period (Mont. Code Ann. 70-19-411).
Proof of tax payment
The statute names no required document. Mont. Code Ann. 70-19-411 asks only that payment of the taxes legally levied and assessed be shown for the period, leaving the sufficiency of the showing to the district court.
Qualifying occupation
With no written instrument, two cases only: protection by a substantial enclosure, or usual cultivation or improvement (Mont. Code Ann. 70-19-410). Only the land actually occupied and no other is deemed held adversely (Mont. Code Ann. 70-19-409).
Color of title
Does not shorten the five years. A written instrument, decree or judgment adds a third qualifying case, including uninclosed land used for fuel, fencing timber, pasturage or the occupant's ordinary use, and reaches the property included in the instrument (Mont. Code Ann. 70-19-407 and 70-19-408).
Former tenants
Frozen for five years. A tenant's possession is considered the landlord's until 5 years from termination of the tenancy, or 5 years from the last rent payment where there was no written lease, even if the tenant claimed to hold adversely (Mont. Code Ann. 70-19-412).
Rivers and streambanks
Closed off. A prescriptive easement cannot be acquired through recreational use of surface waters, their streambeds, their banks up to the ordinary high water mark, portages around barriers, or entering or crossing private property to reach surface waters (Mont. Code Ann. 23-2-322).
Acreage cap
None. Mont. Code Ann. Title 70, chapter 19, part 4, running from 70-19-401 to 70-19-414, contains no acreage figure. Extent is set by actual occupation instead.
Government owned land
An occupant of a public way or other ground dedicated or appropriated by the state to public use and not subject to sale acquires no title by that occupancy (Mont. Code Ann. 70-19-301), and mere occupancy confers title against all except the state (Mont. Code Ann. 70-19-406).
Perfecting title
A quiet title action under Mont. Code Ann. 70-28-101, in the county where the land sits (Mont. Code Ann. 70-28-103), with a notice of pendency filed with the clerk and recorder before any order for publication of summons (Mont. Code Ann. 70-28-106). The result is called a title by prescription (Mont. Code Ann. 70-19-405).
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