Adverse Possession

Method of acquiring legal Title to land through actual, continuous, open occupancy of the property, for a prescribed period of time, under claim of right, and in opposition to the rights of the true owner.

A means of acquiring title to real estate where an occupant has been in actual, open, Notorious, exclusive, hostile, and continuous occupancy of property for the period required by state law. Permission from the owner, as given by a lease, does not qualify because it is not hostile.
Example: Although the elderly Ms. Davis held no official Deed to the land, she was awarded title by adverse possession, since she had lived on the property all her life and the legal owner was unknown.

For more information on adverse possession, visit Britannica.com.

Occupation of property by one not the true owner, openly, notoriously, and continuously. See statute of limitations; squatter’s right; proscription.

A method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by state law. Personal property may also be acquired by adverse possession.

Adverse possession is similar to prescription, another way to acquire title to real property by occupying it for a period of time. Prescription is not the same, however, because title acquired under it is presumed to have resulted from a lost grant, as opposed to the expiration of the statutory time limit in adverse possession.

Real Property

Title to land is acquired by adverse possession as a result of the lapse of the statute of limitations for ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made.

The legal theory underlying the vesting of title by adverse possession is that title to land must be certain. Since the owner has, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period of time is recognized as its owner.

Title by adverse possession may be acquired against any person or corporation not excepted by statute. Property held by the federal government, a state, or a municipal corporation cannot be taken by adverse possession. As long as the property has a public use, as with a highway or school property, its ownership cannot be lost through adverse possession.

Anyone, including corporations, the federal government, states, and municipal corporations, can be an adverse possessor.

Elements

In order that adverse possession ripen into legal title, nonpermissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the uses to which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by a preponderance of the evidence.

Actual

Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property — for example, planting and harvesting crops or cutting and selling timber — indicates actual possession. In some states acts that constitute actual possession are found in statute.

Open and notorious

An adverse possessor must possess land openly for all the world to see, as a true owner would. Secretly occupying another's land does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant's possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.

Exclusive

Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.

An adverse claimant cannot possess the property jointly with the owner. Two people may, however, claim title by adverse possession as joint tenants if they share occupancy of the land. When others or the general public have regularly used or occupied the land with the adverse claimant, the requirement of exclusive possession is not satisfied. Casual use of the property by others is not, however, inconsistent with exclusive possession. Generally, easements do not affect the exclusive possession by an adverse possessor. In some jurisdictions easements exercised by the public or railroad rights of way will destroy exclusive possession.

Hostile

Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner's rights. There need not be a dispute or fighting over title as long as the claimant intends to claim the land and hold it against the interests of the owner and all the world. Possession must be hostile from its commencement and must continue throughout the statutory period.

One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession.

Continuous

Adverse possession must be continuous for the full statutory period if title is to vest. Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough. Continuity is sometimes explained as the daily control of the land by the adverse claimant for the length of the statutory period. If a person has continuously occupied only a part of all the land claimed under adverse possession, he or she will acquire title only to the occupied portion.

While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only one person hold the land continuously for the statutory period. The time periods that successive adverse occupants have possessed the land may be added together to meet the continuity requirement if privity exists between the parties. The addition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests are related to each other by a sale or inheritance of the land or by operation of law, as possession by a trustee in bankruptcy.

Tacking is permitted only when the possession by the prior occupant had been adverse or under color of title. If any time lapses between the end of one owner's possession and the start of another's occupation, there is no continuity, so tacking will not be allowed.

Interruption of continuous possession deprives the adverse possessor of the legal effect of his or her prior occupancy. The statute of limitations will begin to run again from the time he or she starts actual, open, hostile, notorious, and exclusive possession. The length of the interruption is insignificant as long as it disturbs continuous possession. At that time the law restores constructive possession of the land to the true owner.

The commencement of a lawsuit by the owner against the occupant over the right of ownership and possession of the land is one way to interrupt continuous possession. It may be an action to quiet title, for trespass, for an injunction involving possessive rights, or to file a petition for registration of land title. Such lawsuits will destroy the continuity of possession only if successfully pursued to final judgments. If the owner chooses to abandon or settle a suit, or if a court dismisses it, the continuity of possession is not breached.

The entry of the owner upon the land with the intent to repossess it is a clear exercise of ownership that disturbs possession. A survey of the land made at the request of the true owner does not interrupt possession unless the purpose is to help the true owner take possession. The owner's actions must be notorious and open so there can be no doubt as to what is intended. An accidental, casual, secret, or permissive entry is ineffective. While the entry must be notorious, it must also be peaceable to prevent violence and warfare, which might otherwise result.

The payment of real estate taxes by the owner, while demonstrating that he or she has not abandoned land, is not considered to have any impact on continuous possession.

The adverse claimant may destroy his or her continuous possession by abandoning the land or giving it to someone else, even the owner, before the time at which title to it would vest. It does not matter how long or brief the abandonment is as long as it was intentional. A temporary absence from the land is not the same as an abandonment and has no effect on the occupancy, provided it is for a reasonable period of time.

Statutory period

The time period of the statute of limitations that must expire before title can be acquired by adverse possession varies from state to state. No statute will begin to run until the adverse claimant actually possesses the property in question under color of title or claim of right, where necessary. As of that time, the landowner is entitled to bring a lawsuit against the possessor to recover the property.

The adverse possessor must occupy the property for the full statutory period. In jurisdictions that also require color of title, it must coexist with possession for the complete period.

If the statute of limitations has been suspended — for example, because there is a lawsuit pending between the owner and the claimant or the owner is insane, an infant, or serving in the armed services — that amount of time will not be counted toward the time necessary for the acquisition of title.

Acquired Title

Once adverse possession is completed, the claimant has full legal title to the property. The expiration of the statutory period eliminates any cause of action or liability for ejectment or trespass regarding the new owner's prior unlawful possession of the property. Once the time period is satisfied, the adverse possessor is considered the original owner of the land. He or she may use the land any way he or she sees fit provided it is lawful.

Personal Property

Ownership of personal property may be acquired by adverse possession if the same requisites are met. The claimant must possess the property actually, openly, notoriously, exclusively, hostilely, under claim of right, and uninterrupted for the statutory period.

Property law
Part of the common law series
Acquisition of property
Gift  · Adverse possession  · Deed
Lost, mislaid, and abandoned property
Alienation  · Bailment  · License
Estates in land
Allodial title  · Fee simple  · Fee tail
Life estate  · Defeasible estate
Future interest  · Concurrent estate
Leasehold estate  · Condominiums
Conveyancing of interests in land
Bona fide purchaser  · Torrens title
Estoppel by deed  · Quitclaim deed
Mortgage  · Equitable conversion
Action to quiet title
Limiting control over future use
Restraint on alienation
Rule against perpetuities
Rule in Shelley's Case
Doctrine of worthier title
Nonpossessory interest in land
Easement  · Profit
Covenant running with the land
Equitable servitude
Related topics
Fixtures  · Waste  · Partition
Riparian water rights
Lateral and subjacent support
Assignment  · Nemo dat
Other areas of the common law
Contract law  · Tort law
Wills and trusts
Criminal Law  · Evidence

In common law, adverse possession is the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time.

The law of adverse possession is entirely statutory, arising out of a statutory limitation period or statute of limitations.

Requirements for adverse possession

Adverse possession requires three elements in regards to the possession of the property^[1]:

1. physical (actual, visible, notorious, exclusive)
2. mental (hostile)
3. temporal (continuous)

In simple terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. Where the property is of a type ordinarily only occupied during certain times (such as a summer cottage), the adverse possessor may only need to have exclusive, open, hostile possession during those successive useful periods, for the required number of years.

Effect of adverse possession

An adverse possessor will be committing a trespass on the property that they have taken and the owner of the property could cause them to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that the action of trespass is brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the land owner to evict the adverse possessor depends on the jurisdiction.

In some (such as England and Wales), the title of the landowner will be automatically extinguished once the relevant limitation period has passed. This process now only applies to unregistered land.

In other jurisdictions, the adverse possessor acquires merely an equitable title: the land owner being a trustee of the property for them.

Adverse possession only extends to the property adversely possessed. If the original owner had a title to a greater area (or volume) of property, the adverse possessor does not obtain all of it.

In some jurisdictions, a person who has successfully obtained title to property by adverse possession may (optionally) bring an action in land court to "quiet title" of record in their names on some or all of the former owner's property. Such action will make it simpler to convey the interest to others in a definitive manner, and also serves as notice that there is a new "owner" of record, which may be a pre-requisite to certain benefits (including equity loans, or judicial standing as an abutter). However, even if such action is not taken, the title is legally theirs, with most of the benefits and duties, including paying property taxes to avoid losing title to the tax collector. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another.

Adverse possession does not typically work against property owned by a government agency. However, there will be a more complicated analysis if private property were taken by eminent domain, control given to a private corporation (such as a railroad), then abandoned.

Where land is registered under a Torrens title registration system or similar, special rules apply. It may be that the land cannot be affected by adverse possession (as was the case in England and Wales from 1875 to 1926), or that special rules apply.

Adverse possession may also apply to territorial rights. In the United States, Georgia lost an island in the Savannah River to South Carolina, when that state used fill from dredging to attach the island to its own shore. Since Georgia knew of this yet did nothing about it, the U.S. Supreme Court (which has original jurisdiction in such matters) granted this land to South Carolina, even though the Treaty of Beaufort (1787) explicitly specified that the river's islands belonged to Georgia.

England and Wales

In England and Wales, adverse possession has been governed by section 15 of the Limitation Act 1980, since 1 May 1981.^[2] The limitation period for the adverse possession of land is 12 years in virtue of Section 15(1).^[3]

The position of a registered landowner has been greatly improved since the coming into force of the Land Registration Act 2002. Where land is registered, the adverse possessor may apply to be registered as owner after 10 years of adverse possession and the Land Registry must give notice to the true owner of this application. This gives the land owner a statutory period of time [65 business days] to object to the adverse possession, after which the true owner usually will have a further two years in which to evict the adverse possessor. This effectively prevents the removal of a land owner's right to property without their knowledge.

Where a tenant adversely possess land, there is a presumption that they are doing so in a way that will benefit their landlord at the end of their term. If the land does not belong to their landlord, the land will become part of both the tenancy and the reversion. If the land does belong to their landlord it would seem that it will be gained by the tenant but only for the period of their term. ^[4]

Squatter's rights

Adverse possession is sometimes called "squatters' rights". If the squatter abandons the property for a period, or if the rightful owner effectively removes the squatter's access even temporarily during the statutory time period, or even gives his permission, the "clock" usually stops. For example, if the required time period in a given jurisdiction is twenty years and the squatter is removed after only fifteen years, the squatter loses the benefit of that 15 year possession (i.e., the "clock" is re-set to "zero"). If that squatter later retakes possession of the property, that squatter must, in order to acquire title, remain on the property for a full twenty years after the date on which the squatter retook possession. In this example, the squatter would have to have held the property for a total of 35 years (the 15 original years plus the 20 later years) to acquire title.

However, one squatter may pass along continuous possession to another squatter, known as "tacking", until the adverse possession period is complete. A lawful owner may also restart the "clock" at "zero" by giving temporary permission for the occupation of the property, thus defeating the necessary "continuous and hostile" element. Evidence that a "squatter" paid rent to the owner would defeat adverse possession for that period.

Comparison to homesteading

Adverse possession is in some ways similar to homesteading. Like the adverse possessor, the homesteader may gain title to property by using the land and fulfilling certain other conditions. In homesteading, however, the possession of the property is not hostile; the land is either considered to have no legal owner or it is owned by the government. The government allows the homesteader to use the land with the expectation that the homesteader who fulfills the requirements necessary for the homestead will gain title to the property.

The homestead principle and squatter's rights embody the most basic concept of property and ownership, which can be summed up by the adage "possession is nine-tenths of the law"; in other words, "the person who uses the property owns it". The homestead principle and squatter's rights pre-date formal property laws and to a large degree modern property law is a formalization and expansion of these simple ideas.

The homestead principle is the idea that if no one is using or possessing property, the first person to claim it and use it consistently over a period of time owns the property. Squatter's rights embodies the idea that if one property owner neglects property and fails to use it, and a second person starts to tend and use the property, then after a certain period of time the first person's claim to the property is lost and ownership transfers to the second person, who is actually using the property.

The legal principle of homesteading, then, is a formalization of the fundamental homestead principle in the same way that the right of adverse possession is a formalization of the fundamental and pre-existing principle of squatter's rights.

The essential ideas behind the homestead principle and squatter's rights hold generally for any type of item or property of which ownership can be asserted by simple use or possession. In modern law, homesteading and the right of adverse possession refer exclusively to real property. In the realm of personal property, the same impulse is summarized by the adage "finders keepers" and formalized by laws and conventions about abandoned property.

Intellectual property

In the realm of so-called intellectual property, until just a few hundred years ago all rights in a literary or artistic work remained in the hands of the person who physically possessed the work. The creator of a work who wished to retain control of the work was required to maintain physical control of the work in the manner of a trade secret. As the idea of intellectual property developed, more and more rights are reserved for the creator or copyright holder, regardless of whether or not this person maintains physical control of the work or copies of it. Fewer and fewer rights are retained by physical possessor(s) of the work. Some rights do remain, however, and are codified in the notion of fair use and the doctrine of first sale.

Adverse easements

Adverse possession grants only those rights in the adversely possessed property which are 'taken' by the adverse possesser. For example, an adverse possesser might choose to take an easement, rather than the entire fee title to the property. In this manner, it is possible to adversely possess an easement, under the legal doctrine of prescription. This must also be done openly but need not be exclusive, and must outlast the same required statutory eviction period. It is common practice in cities such as New York, where builders often leave sidewalk space or plazas in front of their buildings to meet zoning requirements, to close public areas they own periodically in order to prevent the creation of a permanent easement and compromise their exclusive property rights. Often times, this process requires the removal of land pirates, who are notorious for supporting the creation of adverse easements.

Furthermore, if a property owner interferes with an easement upon his property in a manner that satisfies the requirements for adverse prescription (e.g., locking the gates to a commonly used area, and nobody does anything about it), they will successfully extinguish the easement. This is another reason to quiet title after a successful adverse possession or adverse prescription; it clarifies the record of who should take action to preserve the adverse title or easement while evidence is still fresh.

For example, given a deeded easement to use someone else's driveway to reach a garage, if a fence or permanently locked gate prevents the use, and nothing is done to remove or circumvent the obstacle, and the statutory period expires, then the easement ceases to have any legal force, even though the deed held by the fee simple owner stated that the owner's interest was subject to the easement.

Non-common law jurisdictions

Some non-common law jurisdictions have laws similar to adverse possession. For example, Louisiana has a legal doctrine called acquisitive prescription.

In Roman law, usucapio laws allowed someone who was in possession of a good without title to become the lawful proprietor if the original owner didn't show up after some time (one or two years), unless the good was obtained illegally (by theft of force).

See also

• List of real estate topics
• Transients
• Easement for related adverse rights
• Squatting
• Usucaption
• Usufruct
• Property law
• Property rights
• Lien
• Popular sovereignty
• Preemption Act of 1841

References

1. ^ Although some jurisdictions further require the possession to be made under a claim of title or a claim of right.
2. ^ Section 41(2) Limitation Act 1980
3. ^ Section 15(1) Limitation Act 1980
4. ^ Smirk v Lyndale Developments Ltd [1974] 3 WLR 91

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