First a quick story – A man, that we’ll refer to as Bob Jones, let his neighbor walk through his yard to take out her garbage out every Wednesday morning for the duration of his ownership. Bob sells his property and the new owners ask her to stop. She says no, “I’ve been doing this for 15 years.” They sue and the neighbor wins. She is allowed to continue her path through the yard. She’s been given a prescriptive easement through the rights of adverse possession.
A method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusionof 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 oftime. 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.
*this definition provided by; the free dictionary.com
Story # 2 – Mary Jones, owns a piece of land that she purchased as something she wanted to build on for retirement. Mr. Roger’s the neighbor of the property regularly weeds the property and mows the grounds. After about 5 years Mary sees this and asks him to stop. Mr. Roger’s just can stand it. He has to take care of the property. 10 years passes, Mary Jones is finally ready to build her dream home and Mr. Rogers says, “no way, this is my property. He files suit and wins! He’s obtained this land by Adverse Possession.
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 ownerhas, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, anadverse 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 bythe federal government, a state, or a Municipal Corporation cannot be taken by adverse possession. As long as theproperty 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 elementsmust coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the usesto which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by apreponderance of the evidence.
Actual Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merelyclaiming 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 propertyby a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising thedominion over the land that an average owner of similar property would exercise. Ordinary use of the property—forexample, planting and harvesting crops or cutting and selling timber—indicates actual possession. In some states acts thatconstitute 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 improvingthe land demonstrates open and notorious possession, while actual residence on the land is the most open and notoriouspossession of all. The owner must have actual knowledge of the adverse use, or the claimant’s possession must be sonotorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession putsthe 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 oppositionto the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence ofexclusive possession.
An adverse claimant cannot possess the property jointly with the owner. Two people may, however, claim title by adversepossession as joint tenants if they share occupancy of the land. When others or the general public have regularly used oroccupied the land with the adverse claimant, the requirement of exclusive possession is not satisfied. Casual use of theproperty by others is not, however, inconsistent with exclusive possession. Generally, easements do not affect the exclusivepossession by an adverse possessor. In some jurisdictions easements exercised by the public or railroad rights of way willdestroy exclusive possession.
Hostile Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostilepossession means that the claimant must occupy the land in opposition to the true owner’s rights. There need not be adispute or fighting over title as long as the claimant intends to claim the land and hold it against the interests of the ownerand 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 theappearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does notbecause some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or sheexecuted a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of titlebecause it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land inthe manner required by law for the full statutory period, his or her color of title will become actual title as a result of adversepossession.
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 asthe daily control of the land by the adverse claimant for the length of the statutory period. If a person has continuouslyoccupied only a part of all the land claimed under adverse possession, he or she will acquire title only to the occupiedportion.
While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only oneperson hold the land continuously for the statutory period. The time periods that successive adverse occupants havepossessed the land may be added together to meet the continuity requirement if privity exists between the parties. Theaddition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner tothe next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests arerelated 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 timelapses between the end of one owner’s possession and the start of another’s occupation, there is no continuity, so tackingwill not be allowed.
Interruption of continuous possession deprives the adverse possessor of the legal effect of his or her prior occupancy. Thestatute of limitations will begin to run again from the time he or she starts actual, open, hostile, notorious, and exclusivepossession. The length of the interruption is insignificant as long as it disturbs continuous possession. At that time the lawrestores 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 landis one way to interrupt continuous possession. It may be an action to quiet title, for trespass, for an Injunction involvingpossessive rights, or to file a petition for registration of land title. Such lawsuits will destroy the continuity of possession onlyif successfully pursued to final judgments. If the owner chooses to abandon or settle a suit or if a court dismisses it, thecontinuity 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 disturbspossession. A survey of the land made at the request of the true owner does not interrupt possession unless the purpose isto help the true owner take possession. The owner’s actions must be notorious and open so there can be no doubt as towhat is intended. An accidental, casual, secret, or permissive entry is ineffective. While the entry must be notorious, it mustalso 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 notconsidered 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 aslong as it was intentional. A temporary absence from the land is not the same as an abandonment and has no effect on theoccupancy, 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 adversepossession varies from state to state. No statute will begin to run until the adverse claimant actually possesses the propertyin question under color of title or claim of right, where necessary. As of that time, the landowner is entitled to bring a lawsuitagainst 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, itmust 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 andthe claimant or the owner is insane, an infant, or serving in the armed services—that amount of time will not be countedtoward the time necessary for the acquisition of title.
Once adverse possession is completed, the claimant has full legal title to the property. The expiration of the statutoryperiod eliminates any Cause of Action or liability for ejectment or trespass regarding the new owner’s prior unlawfulpossession of the property. Once the time period is satisfied, the adverse possessor is considered the original owner of theland. He or she may use the land any way he or she sees fit provided it is lawful.
Ownership of personal property may be acquired by adverse possession if the same requisites are met. The claimant mustpossess the property actually, openly, notoriously, exclusively, hostilely, under claim of right, and uninterrupted for thestatutory period.