Adverse Possession

Introduction

Adverse possession is a process by which ownership of land can change hands in a manner that is without compensation and without the intent or desire of the current owner’s rights. Normally there is a statute within a state that regulates different aspects of adverse possession, but there are several essential elements that are found within the common law. Generally that common law requires:

1. An entry and possession of land, that is
2. Open and Notorious
3. Continuous and Uninterrupted for the Statutory Period (often 21 years)
4. Hostile
5. Adverse under a claim of right

Entry and Possession of Land that is Open and Notorious

Entry and possession of land for the required time must be exclusive, continuous, uninterrupted, visible, and notorious. To be open and notorious, if the possession must give actual knowledge to the landowners then the condition is met. If actual notice was not given, then possession that is reasonably able to put attentive owners on notice will meet the requirement. General types of proof requirements are that the premises are protected by a substantial enclosure or usually cultivated or improved. Van Valkenburgh v. Lutz, 106 N.E.2d 28 (N.Y. 1952). 

 

Some states require that the adverse possessor pay property taxes on the property being possessed. This is not a universal requirement, but often times; cases will turn on who paid the property taxes first.

Continuous and Uninterrupted for the Statutory Period

By Continuous it is not meant that the possessor must occupy the property at all times. Providing that the land has been possessed and that possession is open and notorious, the possession is considered continuous with a few exceptions:

Abandonment: If it is clear that the possessor has abandoned the property, then the statutory period will restart when he takes possession again.

Intermittent activities vs. Seasonal Possession: Intermittent activities are those that are not usually done by true owners (eg occasional hunting), these types of activities do not constitute possession.  However, continuous possession may be met by seasonal occupation if property of this kind would be used in this manner by the average owner.

Possession may be “tacked” (their time adds together) by two subsequent adverse possessors if they are in “privity” with one another. Privity refers to either a familial or economic interest. Thus, privity exists if the property is sold, given, or devised. 

Hostile

Courts disagree what is meant by hostile. Some courts follow an objective standard while other states follow a more subjective standard. The Subjective standard looks at the adverse possessors intent. For example under the Main Doctrine, the court required subjective bad faith on the part of the adverse possessor. Most courts do not follow the Maine Doctrine, rather requiring only good faith or a mistake. Other courts take an objective approach. For example in French v. Pearce, 8 Conn. 439 (1831), the court ruled that no inquiry is to be made into mental state. Rather just the acts are to be examined.

Adverse Under a Claim of Right

Adverse under a claim of right can refer to either claim of title or color of title. A claim of title is simply one way of expressing the required hostility or claim of right by the adverse possessor by claiming that the land belongs themselves. A claim under the color of title refers to the situation when someone makes a claim to ownership founded on a written instrument or a judgment or decree that is for some reason defective or invalid. Courts tend to be more lenient to adverse possessors if their claim has been made under a color of title.

One type of adverse possession that is important to remember is Constructive possession through color of title. If an adverse possessor possessed party of a land parcel, and that possession was based on a deed or a judgment that conveyed the entire parcel. The adverse possessor may acquire the entire parcel.

Adverse Possession and Disabilities

If the true owner of the property has a disability at the time of the possession, nearly all states grant him more time within which to bring an ejectment action.  However, this disability must exist at the time of the possession, and there is no ‘tacking’ of disabilities allowed. 

Boundary Disputes Based on Encroachment:

Boundary Disputes tend to be solved by the doctrines of agreed boundaries, acquiescence, and estoppel. The doctrine of agreed boundaries provides that in the case of uncertainty between neighbors, an oral agreement is enforceable if the parties agree for a long enough period. The Doctrine of acquiescence itself can be enforced as an agreement between the parties. The doctrine of estoppel comes into play when one party makes representations and then the other party changes her position in reliance of the representation.

For innocent encroachers, if the encroachment needs to be removed, the plaintiff may be required to pay fair value for the encroachment.  In addition, courts will often apply a two part test for removing innocent encroachers. Amkco LtD., Co. v. Wellborn, 21 P3d 24 (N.M. 2001):

1. The π must show that he will suffer irreparable harm if the removal were denied.
2. π’s harm from not having the encroachment removed must be greater than ∆’s harm incurred in removing the encroachment.

The courts are generally unsympathetic to intentional encroachers, and will require the removal of the offending structure regardless to how expensive that might be.This test is very important when considering that sometimes deed descriptions do not always match the property that is conveyed. See Howard v. Kunto, 477 P.2d 210 (Wash. App 1970). 

Conclusion

Many people are against the doctrine of adverse possession because they associate it with squatter’s rights.  However, “squatter’s rights” itself has no legal meaning, and many states have higher requirements for “squatters” who attempt to take ownership without a false deed or mistake. 

Indeed, this doctrine is important can be very important when someone shows up at your door and demands your property.