Adverse Possession - Definition
Claiming an Ownership Interest in Someone Else's Property
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What is 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 persons land.
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What are the Elements of Adverse Possession?
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 individuals 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 elses property without her consent? Are you convinced by the governments justification for this law? Is there any way you would alter the law to make it more fair?
- Some would argue that this law is bad at its core. They believe in a totality of ownership rights, which should not be upended in this manner. Others might argue that this law is good when looking at the economical aspect of land. This is because the lands needs to be used for a beneficial economic purpose.In the event it lays dormant, its beneficial purpose is not achieved.
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 neighbors garage?
- Trina can sue for trespass through encroachment of her land. This is because the neighbor had trespassed on her land without her knowledge by constructing a building on it. The neighbor may be able to defend the trespass suit with a claim of adverse possession. In this case the essential ingredients of adverse possession may be present. These are: Continuous possession, Hostile (or without permission); Actual possession (meaning that the neighbor claimed to be the owner); Open possession, meaning that it was not hidden; Notorious, in that the possession of the neighbor of the land must be known by others (not necessarily the owner); and Exclusive possession (meaning that the property was not treated as a commonly owned or public area. Then, the neighbor must have possessed the land for the requisite statutory period. In this case, all of the elements appear to be present. Trina is aware that the neighbor was occupying the land, even though she is not aware that she owns the land. Open, the neighbor had openly claimed to be in possession of the land as he or she built a building on it. The question will be whether the local statutory period for adverse possession has run. This period of time is stipulated under the statute of limitations. Generally, a states statute of limitations provides that the adverse possessor must have had possession of the property for more than 7 years if under color of title, or 20 years if not. From the example in the practice question, Trina has likely lost rights over the piece of land that the neighbor has been using for their garage for over 12 years.
Academic Research on Adverse Possession
- McCormack, John L., Title to Property, Title to Marriage: The Social Foundation of Adverse Possession and Common Law Marriage (Winter 2008). Valparaiso University Law Review, Vol. 42, No. 2, 2008; Loyola University Chicago School of Law Research Paper No. 2011-012. Available at SSRN: https://ssrn.com/abstract=1885811
- Richardson, Sally Brown, Abandonment and Adverse Possession (April 20, 2015). Houston Law Review, Vol. 52, No. 1385, 2015. Available at SSRN: https://ssrn.com/abstract=2596683
- Mee, John, A Minimal Approach to Adverse Possession (July 9, 2015).  79 Conveyancer and Property Lawyer 455-464. Available at SSRN: https://ssrn.com/abstract=2745360
- Klass, Alexandra B., Adverse Possession and Conservation: Expanding Traditional Notions of Use and Possession. 77 University of Colorado Law Review 283 (2006). Available at SSRN: https://ssrn.com/abstract=801210
- Brown, Carol Necole and Williams, Serena Maria, Rethinking Adverse Possession: An Essay on Ownership and Possession (September 29, 2010). Syracuse Law Review, Vol. 60, No. 3, 2010; Widener Law School Legal Studies Research Paper No. 10-33. Available at SSRN: https://ssrn.com/abstract=1684712
- Dixon, Martin John, Adverse Possession - Compromises and Estoppel (May 27, 1992). Cambridge Law Journal, Vol. 51, p. 420, 1992. Available at SSRN: https://ssrn.com/abstract=2270727
- Marra, William, Adverse Possession, Takings, and the State (May 19, 2012). University of Detroit Mercy Law Review, Vol. 89, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=2062856