Sunday, December 6, 2009

Adverse Possession: A method of gaining legal title to real property

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Adverse Possession


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.

Further readings

Berger, Lawrence. 1999. "Unification of the Doctrines of Adverse Possession and Practical Location in the Establishment of Boundaries." Nebraska Law Review 78 (winter): 1–17.

Bloch, David S., and James Parton III. 2001. "The Intent Theory of Extinguishment under California Law." Southwestern University Law Review 30 (winter): 221–52.

Gonski, Dennis M. 2001. "Disrupting More Than a Half Century of Accepted Law." New Jersey Law Journal (June 18).

Latovick, Paula R. 1998. "Adverse Possession of Municipal Land: It's Time to Protect This Valuable Asset." University of Michigan Journal of Law Reform 31 (winter): 475–513.

Spitler, William Hayden. 2000. "Over a Century of Doubt and Confusion: Adverse Possession in Arkansas, Intent to Hold Adversely and Recognition of Superior Title." Arkansas Law Review 53 (spring): 459–87.

Stake, Jeffrey Evans. 2001. "The Uneasy Case for Adverse Possession." Georgetown Law Journal 89 (August): 2419–74.

Cross-references

Cause of Action; Color of Title; Easement; Real Property; Statute of Limitations; Title; Trespass.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

adverse possession n. a means to acquire title to land through obvious occupancy of the land, while claiming ownership for the period of years set by the law of the state where the property exits. This can arise when a rancher fences in a parcel contending he was to get title from some prior owner, and then grazes cattle on the property for many years without objection by the title holder. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period (varies by state) are evidence of adverse possession but cannot be used by a land grabber with no claim to title other than possession. (See: possession)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

adverse possession noun acquisition, assumption, attainment, obtainment, ownership, proprietorship, recovery, seizure
Associated concepts: adverse claim, adverse holding, adderse interest, adverse party, adverse user, adverse verdict, adverse witness

Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.


ADVERSE POSSESSION, title to lands. The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued, under an assertion or color of right on the part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2 Serg. & Rawle, 527; 10 Watts R, 289; 8 Con R. 440; 3 Penn. 132; 2 Aik. 364; 2 Watts, 23; 9, John. 174; 18 John. 40, 355; 5 Pet. 402; 4 Bibb, 550. Actual possession is a pedis possessio which can be only of ground enclosed, and only such possession can a wrongdoer have. He can have no constructive possession. 7 Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479.
2. When the possession or enjoyment has been adverse for twenty years, of which the jury are to judge from the circumstances the law raises the presumption of a grant. Ang. on Wat. Courses, 85, et seq. But this presumption arises only when the use or occupation would otherwise have been unlawful. 3 Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; Cowen, R. 589; 4 S. & R. 456. See 2 Smith's Lead. Cas. 307-416.
3. There are four general rules by which it may be ascertained that possession is not adverse; these will be separately considered.
4.-1. When both parties claim under the same title; as, if a man seised of certain land in fee, have issue two sons and die seised, and one of the sons enter by abatement into the land, the statute, of limitations will not operate against the other son; for when the abator entered into the land of his father, before entry made by his brother, the law intends that he entered claiming as heir to his father, by which title the other son also claims. Co. Litt s. 396.
5.-2. When the possession of the one party is consistent with the title of the other; as, where, the rents of a trust state were received by a cestui que trust for more than twenty years after the creation of the trust, without any interference, of the trustee, such possession being consistent with and secured to the cestui que trust by the terms of the deed, the receipt was held not to be adverse to the title of the trustee. 8 East. 248.
6.-3. When, in contemplation of law, the claimant has never been out of possession; as, where Paul devised lands to John and his heirs, and died, and John died, and afterwards the heirs of John and a stranger entered, and took the profits for twenty years; upon ejectment brought by the devisee of the heir of John against the stranger, it was held that the perception of the rents and profits by the stranger was not adverse to the devisee's title; for when two men are in possession, the law adjudges it to be the possession of him who has the right. Lord Raym. 329.
7.-4. When the occupier has acknowledged the claimant's titles; as, if a lease be granted for a term, and, after paying the rent for the land during such term, the tenant hold for twenty years without paying rent, his possession will not be adverse. See Bos. & P. 542; 8 B. & Cr. 717; 2 Bouv. Inst. n. 2193-94, 2351.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

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