Adverse Possession

The preceding chapters examined ownership interests, future interests, concurrent ownership, easements, licenses, and private land-use restrictions. Each of those doctrines involves rights created through conveyances, agreements, statutes, or other recognized legal relationships.

This chapter examines a doctrine that operates differently.

Adverse possession concerns the acquisition of title through qualifying possession rather than through the voluntary transfer of ownership. Under limited circumstances established by state law, a person who possesses another's land for the required statutory period and satisfies every legal element may acquire title to that property. Because adverse possession can alter ownership rights, courts generally require strict compliance with the governing statutory and common-law requirements. (Legal Information Institute)

Adverse possession is one of the oldest doctrines in Anglo-American property law and remains important in modern boundary disputes, quiet title actions, and title examinations.

Adverse possession is a legal doctrine under which a person who possesses land owned by another may acquire legal title if every required element is satisfied for the period established by applicable state law.

Unlike ownership acquired through a deed, inheritance, or judicial sale, adverse possession arises from qualifying possession over time.

It is important to understand what adverse possession is not.

A person does not become the owner simply by entering another person's land or remaining there for an extended period. Every legal requirement imposed by the governing jurisdiction must be met before title may be acquired.

Adverse possession often appears counterintuitive because it allows ownership to change without a traditional conveyance. Historically, however, the doctrine developed to serve several policy objectives.

Among the commonly recognized justifications are:

• encouraging the productive use of land;
• promoting certainty and stability of title;
• resolving long-standing boundary disputes;
• preventing stale ownership claims;
• encouraging owners to monitor and protect their property interests.

Modern legislatures have modified many aspects of the doctrine, and significant differences exist among the states regarding required elements, statutory periods, and procedural requirements.

Although terminology varies among jurisdictions, courts generally require proof of several traditional elements before recognizing an adverse possession claim.

The claimant bears the burden of proving each required element under applicable law.

Actual Possession

The claimant must actually possess the property in a manner consistent with its nature and ordinary use.

Examples may include:

• occupying a residence;
• cultivating farmland;
• enclosing property with a fence;
• maintaining improvements;
• using the land as an ordinary owner would.

Open and Notorious

The possession must be sufficiently visible and apparent to place the true owner on notice that another person is exercising dominion over the property.

Secret or concealed occupation generally will not satisfy this requirement.

Exclusive

The claimant must exercise possession independently rather than sharing control with the true owner or the general public.

The possession should resemble the type of exclusive control ordinarily exercised by an owner.

Continuous

Possession must continue for the full statutory period required by the governing jurisdiction.

What constitutes "continuous" depends upon the character of the property. Seasonal use, for example, may satisfy continuity when consistent with the property's ordinary use.

Hostile (Claim of Right)

One of the most misunderstood elements is hostility.

In this context, hostile generally does not mean anger, violence, or personal animosity.

Instead, it means that the possession occurs without the owner's permission and is inconsistent with the owner's superior right to possess the property. If the owner grants permission, the possession is ordinarily not hostile and cannot satisfy this element.

Every state establishes its own limitations period for adverse possession. (LII)

The required period varies considerably among jurisdictions. Some states impose different requirements depending upon circumstances such as:

• possession under color of title;
• payment of property taxes;
• the nature of the property;
• statutory modifications to the common law.

Because these requirements are governed by state law, anyone evaluating an adverse possession claim must consult the statutes and judicial decisions applicable to the jurisdiction where the property is located.

Many jurisdictions recognize the doctrine of color of title. (LII)

Color of title generally refers to a claim founded upon a written instrument—such as a deed or judgment—that appears to convey title but is legally defective.

Examples include:

• an invalid deed;
• an erroneous legal description;
• a defective judicial sale;
• a void conveyance.

Some states provide different statutory rules or shorter limitations periods for claimants possessing property under color of title. Others require additional statutory conditions before color of title has legal significance.

The doctrine of tacking allows successive periods of possession to be combined in certain circumstances. (LII)

Generally, tacking requires privity between successive possessors, such as when possession is transferred through a deed, will, or other recognized legal relationship.

Without the required connection between possessors, separate periods of occupation ordinarily cannot be combined to satisfy the statutory period.

Many adverse possession statutes recognize exceptions or extensions when the true owner is subject to a legal disability at the time the cause of action accrues.

Depending upon the jurisdiction, recognized disabilities may include:

• minority;
• mental incapacity;
• imprisonment; or
• other disabilities established by statute.

Because disability provisions differ substantially among the states, they must always be analyzed under the governing statute.

Adverse possession is frequently misunderstood.

The doctrine does not mean that:

• anyone who occupies property automatically becomes the owner;
• a brief trespass creates ownership rights;
• permission from the owner satisfies the hostility requirement;
• title transfers automatically without satisfying every legal requirement.

Each jurisdiction establishes specific statutory and common-law requirements, and failure to prove any required element generally defeats the claim.

Adverse possession most commonly arises in:

• boundary disputes;
• fence-line disagreements;
• surveying errors;
• long-occupied vacant property;
• quiet title litigation (LII);
• title examinations;
• title insurance exceptions;
• rural land disputes.

In practice, many adverse possession cases involve relatively small boundary strips rather than entire parcels of land.

"Adverse Possession Is the Same as Squatter's Rights"

Not exactly.

Although the terms are often used interchangeably in popular discussion, adverse possession is a specific legal doctrine requiring proof of every element established by applicable state law. Simply occupying property is insufficient.

"Hostile Means Angry"

Incorrect.

Hostility generally refers to possession without permission, not personal hostility toward the owner.

"Paying Property Taxes Alone Creates Ownership"

Generally no.

While some jurisdictions consider payment of taxes as part of their statutory framework, tax payments alone ordinarily do not establish adverse possession unless the governing law specifically provides otherwise.

Adverse possession should be distinguished from several related doctrines.

Unlike a deed, adverse possession is not based upon voluntary transfer.

Unlike a prescriptive easement, adverse possession may result in ownership rather than merely a right of use. (LII)

Primary Authorities

• State adverse possession statutes
• State statutes of limitation
• Judicial decisions interpreting adverse possession
• Quiet title statutes
• Survey records and recorded plats
• State property codes

Authoritative Secondary Sources

• Restatement (First) of Property
• Restatement (Third) of Property
• Powell on Real Property
• Thompson on Real Property
• Tiffany Real Property
• American Law of Property
• Corpus Juris Secundum (C.J.S.) Adverse Possession
• American Jurisprudence 2d (Am. Jur. 2d) Adverse Possession

These authorities explain and synthesize adverse possession doctrine but do not replace controlling statutes or judicial decisions.

• Adverse possession is a legal doctrine under which title may be acquired through qualifying possession under applicable state law.
• Every required legal element must be satisfied for the statutory period established by the governing jurisdiction.
• The traditional elements generally include actual, open and notorious, exclusive, continuous, and hostile possession.
• "Hostile" generally means possession without the owner's permission, not personal animosity.
• State statutes govern limitations periods, disability provisions, and many procedural requirements.
• Understanding adverse possession is essential for boundary disputes, quiet title actions, title examination, and real estate litigation.

Next Chapter — Deeds

The next chapter examines deeds, the principal legal instrument used to transfer title to real property. Readers will learn the essential elements of a valid deed, the different types of deeds, execution, delivery, acceptance, and the role deeds play in establishing and conveying ownership before moving into recording acts, chain of title, and title insurance.