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Adverse Possession – Explained

 Adverse Possession

This is a situation where someone legally gains ownership or title to someone else’s property by wrongfully claiming rights of use or possession of that person’s land. There are several elements that must be present to claim an ownership interest in property through adverse possession:

⁃    Open – The individual(s) claiming possession must be open about their claim of ownership. Openness is generally characterized as living upon or using the land as an owner would.

⁃    Example: Hiding or squatting on land intentionally out of site of others will not qualify as an open claim of ownership.

⁃    Notorious – The individual’s presence on the land must be known by others. This is closely related to openness. If others are aware that a person is claiming ownership of the land, it serves to substantiate all other elements of adverse possession statutes or common laws.

⁃    Example: Setting up a mailbox to receive mail would demonstrate that the claim of ownership is known or notorious.

⁃    Actual – The claim of ownership of the land must be actual, rather than nominal. Simply claiming or voicing an ownership interest without physical possession or control of the land is not sufficient. It requires the person to assert her ownership rights through actual possession or control.

⁃    Exclusive – The claim of ownership must be to the exclusion of others. As previously defined, property is something held or possessed to the exclusion of others. The individuals claiming ownership must seek to exclude others from claiming those same ownership rights. This can thwart a claim of adverse possession through group squatting (vagrant community) efforts if not done or undertaken by all squatters as an exercise of group ownership.

⁃    Continuous – The claim of ownership must be continuous throughout the entire period of adverse possession. Breaks in periods of claimed ownership stop the statutory period from running and starts it over when ownership rights are claimed again.

⁃    Wrongful – The individual claiming ownership cannot have the permission or legal right to use the land. If an individual has the legal right (such as through a rental contract) to be on the land, it is not wrongful.

⁃    Statutory Period – Each jurisdiction with an adverse possession statute requires that the possession take place for a prescribed period. The statutory period typically ranges from 7 – 20 years depending upon the jurisdiction and the nature of the property interest. The time period may also vary depending upon the nature of the ownership interest claimed in the land. For example, claiming an easement interest in land may require use for a shorter or longer period than claiming fee simple ownership of the property.

The recognition of ownership through adverse possession seeks to promote beneficial use and ownership of property. If property lays dormant for a period that is sufficient to allow for adverse possession, it is not being beneficially used. This harms economic productivity and is contrary to the public good.

⁃    Discussion: What do you think about this law? Is it fair? Should someone be able to acquire legal ownership of someone else’s property without her consent? Are you convinced by the government’s justification for this law? Is there any way you would alter the law to make it more fair?

⁃    Practice Question: Trina has owned a small parcel of land in town for about 15 years. When she decides to sell the house, she pays a surveyor to draw up a plat of the land. To her surprise, her plot is slightly bigger than she originally suspected. Further, it appears that the neighbors built part of their garage on her land about 12 years ago. What are Trina’s rights with regard to the land encroached upon by her neighbor’s garage?

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