Adverse Possession is a species of unwritten title. It is taking property belonging to another person without their consent. The adverse possessor acquires title by occupying the land of another person. In order to prevail the occupation must essentially be against the interests of the adjoining landowner. Each state has its own legal rules establishing the requirements for adverse possession so the information presented on this page is general in nature and any person reading this is advised to contact an attorney in their jurisdiction familiar with the laws pertaining to adverse possession in their jurisdiction. As noted, there are differences between the states but, in general, the possession must be:
- Open and Notorious
Possession must be Actual. There must be some sort of physical occupation of the property. Building a fence on an abutting property would be actual possession. So would erecting a building. Mowing a lawn, planting shrubs or paving a driveway could be enough to constitute actual possession. Merely putting a plan on record, without more, does not constitute actual possession because there is no physical occupation of the land.
Possession must be Open and Notorious. Possession has to be visible. In addition to requiring physical occupation, the occupation must be open and notorious. The possession must be such that the rightful owner of the property would be on notice of the possession. The means of occupying the land must be visible in such a way that the owner would see the possession were he or she to inspect the property. The owner needn’t actually see the possession however. The fact that the owner lived in another state and failed to inspect the property would not exempt the owner from the requirement. The possession may be deemed open and notorious if it would be obvious to any person inspecting the property. Possession would not be open and notorious, for example, if the possessor were to erect marks of possession only at night and remove them during the day.
The possession must be Hostile or adverse to the interests of the owner. This generally means nothing more than saying that the possession is without permission of the rightful owner. Permissive use defeats adverse possession. If a property owner allowed a neighbor to erect a fence on the owner’s side of the common boundary by giving the neighbor permission to do so, the neighbor could not thereafter claim adverse possession of the land between the fence and the record boundary.
The possession must be Exclusive. The possessor may not share possession with the rightful owner. The possessor must effectively oust the rightful owner from the land. Exclusivity does not mean that the possessor may not share his possession with another person who is not the rightful owner. For example if two brothers who own a farm intentionally fence off their neighbor’s property both brothers share in possession against the neighbor.
The possession must be Continuous and Uninterrupted. The time required for possession varies by state. It usually varies from 7 years to 20 years but there are exceptions. This time is referred to as the statute of limitations. If the rightful owner is successful in ousting the possessor from the land prior to expiration of the statute of limitations, there is a break in possession and clock is reset to zero.
Tacking. Tacking is being able to use the possession of a predecessor in title in order to extend the possession of the current possessor. For example, A owns a parcel of land. A erects a fence on his neighbor’s property hoping to gain the property through adverse possession. Assume that the the statute of limitations in the jurisdiction is 20 years. After 15 years A conveys the property to B. If B continues to occupy the property for another 5 years he will have met the 20 year possession requirement.
Acquiring land through adverse possession seems like stealing the land from your neighbor, doesn’t it? Why does the law sanction stealing the land of another? One justification is that owners are required to exercise diligence in keeping their property. The system of law in our country is an adversarial system. If property owners are content to “sit on their rights” for a long period of time and not exercise their legal right to exclude an intruder, they deserve to lose those rights. Another justification is that adverse possession has the effect of settling the location of boundaries, particularly uncertain boundaries.
NOTE: The information on this website if for general informational purposes only and you should seek legal advice from a qualified attorney.