Adverse Possession

Adverse possession allows a person who takes possession of land that belongs to another for a statutorily prescribed period to become the owner of that land. The party who seeks to take title by adverse possession is the claimant or possessor.

 

Elements

In order for possession to ripen into title, the following elements must be met:

1. Continuous

   1. A claimant’s possession of the land must be as continuous as that of an owner.

   2. An exception to the continuous requirement is called tacking. A claimant may tack on time with a predecessor’s time if there is privity between the two adverse possessors.

2. Open and notorious

   1. The claimant’s possession should be so obvious that the owner would notice upon making inspection of the land.

   2. Hidden activities do not satisfy this element.

3. Actual

   1. The claimant must use and possess the land as the owner would. Actual use depends on the type of land.

      • Example: Oscar has a 10-acre parcel of farmland that he has not utilized in years. Candice begins to cultivate the land in preparation for planting. Candice’s use is actual.

4. Exclusive

   1. The claimant cannot share possession with the owner or anyone else, except as would be natural for the use of the land.

   2. The true owner can interrupt claimant’s exclusive possession by retaking possession.

5. Hostile: There are three different tests to determine whether the claimant’s interest is hostile or adverse to the true owner:

   1. Objective test: Claimant’s state of mind is irrelevant, as long as claimant uses the land as the owner would without permission.

   2. Good faith test: Claimant has a good-faith belief that he or she has title to the land.

   3. Intentional trespass test: Claimant acts with the purpose of taking title with the knowledge that the property belongs to another.

6. Statutory period

   1. The statutory period depends upon the state. Most states require 10, 15, or 20 years.

   2. Certain circumstances may toll the statutory period.

 

Disabilities

The statutory period is tolled, or extended, if the owner has one of the following disabilities: incapacity, infancy, or imprisonment. States vary as to how they treat disabilities for the purpose of adverse possession, but the true owner is allowed a certain period in which to bring suit once the disability ends. Some states require the disability to have existed at the time the adverse possession began.