What is Adverse Possession? - Definition, Law & Cases

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  • 0:00 Origin of Adverse Possession
  • 1:06 Requirements for…
  • 1:49 Adverse Possession…
  • 5:15 How Landowners Can…
  • 6:22 Lesson Summary
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Lesson Transcript
Instructor: William Bonnett
In this lesson we will explore the legal theory of adverse possession. We'll explore the conditions that are required to be met and some of the ways landowners can protect themselves from it.

Origin of Adverse Possession

Adverse possession is a legal theory under which someone who is in possession of land owned by another can actually become the owner if certain requirements are met for a period of time defined in the statutes of that particular jurisdiction. Adverse possession was historically used as a means of encouraging people to bring unused or uninhabited land into productive use.

In past centuries in England, a person who farmed otherwise unused land for a long period of time could be rewarded with title to that land for helping to provide food to the hungry nation. In America, the adverse possession theory was often used to encourage settlers to move onto frontier properties and occupy and improve them in exchange for ownership of the land. This has evolved into the modern day theory requiring a set of common conditions to be met for a period of time, which is defined in the law of a particular jurisdiction.

Requirements for Adverse Possession

Adverse possession requires that an occupation be:

  1. Hostile
  2. Actual
  3. Open and notorious
  4. Exclusive and continuous

These must be met for a specified period of time. The period of time varies from state to state, but it is generally seven years or more. In many cases, this depends on whether the occupation was a result of trespassing without any legal right or if it was done under a good faith mistake in which the trespassers believed they were justified in their occupation, such as relying on an incorrect deed, known as color of title.

Adverse Possession Claim Details

Hostile simply means occupation of the land in a manner that is contrary, or adverse, to the true owner's rights. It does not require any actual hostility or confrontation. Most states allow simple occupation of the land as being sufficiently adverse to the owner's rights, although some states also require that the occupiers be aware that they are trespassing without any legal right or are operating under a mistaken, but good faith, assumption of legal right (color of title). By definition, anyone who enters your land or remains there without your specific permission is a trespasser and therefore hostile. They are not angry, upset or confrontational, they are simply using your property as if they owned it and not you.

Actual possession usually means the person must be physically present on the land. It also requires that the occupation or trespass be more than a temporary one. The occupier must exhibit signs of intent to control the land as an owner would, such as living on the land, cultivating crops or raising livestock. However, in the event that a trespasser engages in activities that any owner might engage in on similar land, such as building a fishing shack even though it is unused in the winter or regularly using the land for a parking space, courts have also found this to constitute actual possession.

Open and notorious requires that the possession be obvious to anyone that a trespasser is in possession; a secret or hidden occupation is not sufficient. However, it also requires that the property owner make a reasonable effort to investigate the situation. Even if a property owner is completely unaware of the situation (for example, the owner lives in a different country and never visits the property) the law requires that the owner make a reasonable effort to be informed about the status of the property. If such an investigation would have uncovered the occupation, then the owner cannot use the fact that he or she is unaware of the trespasser as a defense to the adverse possession claim.

The occupation must be exclusive, not shared with the owner or anyone else, and it must be continuous. If the occupier abandons the property at some time, then returns and resumes the occupation, the time period starts all over. The occupier cannot combine two periods of occupation to meet the time limit. Similarly, if one occupier leaves the property and a second immediately begins occupation, the two periods cannot usually be tacked together to satisfy the required statutory time unless the original occupier was acting under color of title. However, if the original occupation was under color of title and the second occupier takes possession by sale, inheritance, or operation of law (like a trustee in bankruptcy) then tacking will generally be allowed. What constitutes a length of time sufficient to interrupt the continuous possession will depend on the circumstances of each case.

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