What is Adverse Possession?
I was stopped in town the other day and someone suggested that I explain adverse possession in my next article. Adverse possession is the legal concept that allows a non-owner of land to become the owner if he exercises control over the land in a certain way for a certain amount of time. Some people call this “squatters rights.” Adverse possession is actually a very complicated area of law that depends on specific facts, so it is especially important to seek the advice of a lawyer if you have questions regarding adverse possession. Having said that, following is a very general outline of what a person must show in order to gain title to land through the most common type of adverse possession.
For someone to legally adversely possess property to the degree that they can claim title to the property, the adverse possessor must be in “actual, clear, and notorious” possession of the property “under a claim of right, adverse and exclusive to the owner, hostile, open, visible, continuous and uninterrupted for a period of ten years.” (The quoted legal language found in the adverse possession statute is, in and of itself, enough to prove the point about seeking the advice of a lawyer). The key words in these requirements have been legally defined as follows:
“Hostile Possession” means the adverse possessor’s claim to the property is against all others, including the true owner. “Claim of Right” means the adverse possessor believes the property is his under some claim of acquisition, or purchase. “Actual Possession” requires the adverse possessor to actually occupy the property by some act, such as residence, cultivation, harvesting etc. “Open and Notorious Possession” means the true owner actually knows, or should have known, that someone else is living on, or using his land without permission. “Exclusive Possession” means that the adverse possessor holds possession exclusive to all others (“open, notorious, and exclusive possession” are sometimes grouped together to mean that the adverse possessor is performing acts on the property that would normally be performed by the true owner, and in doing so, preventing others from the same use). “Uninterrupted Possession” means the adverse possessor is performing these acts without interruption from others.
One of the key requirements of adverse possession is that the adverse possessor must be trespassing, or using the property without the permission of the landowner. Therefore, it is very important for landowners to properly document any situation where they have granted someone else permission to live on or work their land.
This is just one form of adverse possession and is commonly known as the “10 year statute.” There are other situations where adverse possession may arise after 20 years. Further, there are situations where you can adversely possess easement rights on another’s property, called a “prescriptive easement.”
This column is intended for general information purposes only. It is not intended, nor should it be construed as personal legal advice. The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise.