Adverse Possession

Adverse possession is a principle of real estate law that allows a person who possesses land belonging to another person for an extended period of time, to claim legal ownership of the land. Each state has different statues and time elements required for adverse possession. When adverse possession is in place, it only pertains to the property that the person has possessed. If the property owner has title to a greater area, the possessor is not entitled to obtain all of it. To explore this concept, consider the following adverse possession definition.

Noun

  1. The occupation of land owned by another person with the intention of claiming it as one’s own.

Origin

Late-Middle English

Elements of Adverse Possession

Though state statues differ, they all require the same basic elements of adverse possession. The law states that the possession of the property must be (1) actual, (2) open and notorious, (3) exclusive, (4) hostile, (5) under cover of claim or right, (6) and continuous and uninterrupted for the statutory time period.

  1. Actual possession – the person occupying the land must have physical possession, acting in a manner of a property owner, which is different from only visiting. For example, hunting yearly on the property does not qualify as adverse possession.
  2. Open and notorious – the person occupying the land must act as the owner by engaging in acts consistent with the property’s purpose. Such acts must generally be observed by others to be typical of that expected of an owner.
  3. Exclusive occupation – the person occupying the land must do so exclusively, not sharing the land with the true owner or with the public in general.
  4. Hostility – the person possessing the land shows his intent to hold specific boundaries regardless of the official boundary line.
  5. Under cover of claim or right – the person possessing the property makes a claim that is based upon a legal error, which in turn leads him to believe he is the actual owner of the property.
  6. Continuous and uninterrupted – all of the acts defined by law must occur during the specified time limit in order for the possessor to successfully claim the land.

Additional Requirements of Adverse Possession

Additional requirements of adverse possession that vary state by state may include:

  • The individual occupying the land must have made improvements to the property in question
  • Possession of the land was not taken by force
  • A legal document giving the claimant title to the property must be filed

Statutory Time Period

Each state’s laws specifies the amount of time a person must have possession of the property before it can be legally claimed. For example, in Kentucky, a person must occupy the land for at least 15 years, while California requires a person to occupy the land for only 5 to 7 years. California requires the least amount of time of all the states. Some states even require the person to have paid the property taxes during the statutory time period.

Example of Adverse Possession

A common example of adverse possession is the case of two neighbors who share a property line. With no markers to clearly define the property line they have shared for years, one neighbor installs a fence that, in actuality, is about 4 feet on his neighbor’s side. Years later the property is sold, and the new buyer claims the extra land on his side of the fence. This happens frequently in the U.S. Sometimes the parties simply agree to the new boundary, but property prices and other considerations urge others take the matter to court in an adverse possession lawsuit.

Common Defenses to Adverse Possession

There are, of course, exceptions and defenses to adverse possession. For example, land owned by a municipality (city, county, or state) cannot be claimed by adverse possession. Other defenses to a claim of adverse possession may include:

  • The person using the property was granted permission by the owner
  • The use to which the property has been put is not sufficient to claim an “open and notorious” act of ownership
  • The property was being shared by people other than the person claiming adverse possession during the statutory time period

Protecting Property Against Adverse Possession

Land owners should keep an eye on any property they own but do not frequently visit. Protecting property against adverse possession by squatters may be effectively done by taking the following steps:

  • Place No Trespassing signs on the property
  • Block entrances to the property
  • Give written permission to any individual or entity allowed to use the property
  • Call the police if trespassing or unauthorized use is suspected
  • File an eviction against an unauthorized user of the land
  • Seek legal counsel if the property owner suspects someone will claim adverse possession

Related Legal Terms and Issues

  • Foreclosure – the act of taking possession of a mortgaged property when the buyer fails to make required payments
  • Title – a legal document that specifically states the owner or possession of something, as in real or personal property
  • Reasonable Use – the use of land or water in a manner that is legal and just
  • Trespassing – the act of entering someone’s land or property without permission
  • Statutory Period – a period of time defined by law or statute

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