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Real
Estate

Adverse Possession

By Aaron
Larson

Law Offices of Aaron
Larson

July, 2004

Contents

Introduction
to Adverse Possession

Definitions

Common
Defenses to Adverse Possession

Introduction to Adverse Possession

Adverse possession is a principle of real estate law whereby somebody who
possesses the land of another for an extended period of time may be able to
claim legal title to that land. The exact elements of an adverse possession
claim may be different in each state.

To prove adverse possession under a typical definition, the person claiming
ownership through adverse possession must show that its possession is actual,
open, notorious, exclusive, hostile, under cover of claim or right, and
continuous and uninterrupted for the statutory period. These terms have special
legal meanings as legal "terms of art", meaning that their definition for
purposes of adverse possession law may be different from a definition you would
find in a standard dictionary.

Please note that real estate laws can vary significantly between
jurisdictions. Adverse possession is now usually governed by statute, and the
law, definitions of terms, and the applicable statute of limitations can vary
significantly between jurisdictions.

Definitions

As previously mentioned, the definition of "adverse possession" involves
legal "terms of art" - words which have a special legal meaning that may differ
from their standard definitions. The elements of "adverse possession" are that
possession of the real estate is actual, open, notorious, exclusive, hostile,
under cover of claim or right, and continuous and uninterrupted for the
statutory period.

Actual - You actually acted in the manner of an
owner of the property.

Open & Notorious - You engage in acts of
possession consistent with the property at issue in a manner which was capable
of being seen. (This does not mean that you must have been observed in your acts
of ownership but, had the actual owner or members of the public been in a
position to see you, your acts must have been observeable). You need not use the
property in a manner that exceeds that which would be expected of the actual
owner - that is, it may be possible to claim adverse possession of a vacation
property on the basis of use only during the vacation season, or to claim
adverse possession of a vacant parcel of land by engaging in typical acts of
maintenance for the parcel.

Exclusive - The adverse possessor does not
occupy the land concurrent with the true owner or share possession in common
with the public. One does not have to exclude others from the land in order to
claim "exclusive" use, but during the statutory period the person claiming title
by adverse possession must have been the only person to treat the land in the
manner of an owner.

Hostile - Hostility exists where a person
possesses the land of another intending to hold to a particular recognizable
boundary regardless of the true boundary line. That is, possession is "hostile"
to the title owner's interest in the property. If possession was not hostile, it
may still be possible to advance a claim of ownership under a theory of "acquiescence".
You cannot claim "adverse possession" if you are engaged in the permissive use
of somebody else's land.

Under Cover of Claim or Right - Either when the
person claiming the property makes the claim based upon constructive possession
under color of title (e.g., there is an error in the legal description in their
deed leading them to believe they own part of a neighboring property),
or makes the claim based upon actual use and possession of the
area of land at issue for the statutory period

Continuous & Uninterrupted - All elements
of adverse possession must be met at all times through the statutory period in
order for a claim to be successful. It may be possible to claim adverse
possession even if there is a transfer of ownership through the principle of
"tacking" - for example, a former owner's twelve years of adverse possession can
be "tacked" to the present owner's eight years, for a cumulative twenty years of
adverse possession.

The Statutory Period - The statutory period, or
"statute of limitations", is the amount of time the claimant must hold the land
in order to successfully claim "adverse possession".

Common Defenses to Adverse Possession

While the following list is far from exhaustive, these defenses are very
often brought in adverse possession actions:

Permissive Use - If the actual owner has
granted the claimant permission to use the property, the claim of "adverse
possession" cannot be deemed "hostile" and thus fails.

Public Lands - Government-owned land may be
exempt from adverse possession.

Insufficient Acts - Although it is conceded
that the claimant engaged in some use of the property, it is alleged that these
acts were not sufficient to amount to acts suggesting a claim of ownership.

Non-Exclusive Use - Although it is conceded
that the claimant engaged in some use of the property, it is alleged that others
(usually the property owner) also used the property in a manner
consistent with that of the landowner.

Insufficient Time - Even if various elements of
adverse possession were met, it is alleged that the adverse possession did not
last for the full statutory period, or that the adverse possession was
interrupted by a period of non-use.

Copyright © 2004 - 2011 Aaron Larson. All rights reserved. No
portion of this article may be reproduced without the express written permission
of the copyright holder. If you believe you may lawfully use a quotation,
excerpt or paraphrase of this article under the Fair Use exception to copyright
law, except as otherwise authorized by the author of the article, you must cite
this article as a source for your work and include a link back to the original
article from any online materials that incorporate or are derived from the
content of this article.

Copyright © 1998 - 2011 Aaron Larson. All rights reserved.

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