How Does Adverse Possession Operate?
Adverse possession is a doctrine that comes from our Anglo-American common law tradition. In general, the doctrine of adverse possession aims to facilitate, over time, ownership of land to people who use it and remove ownership from people who do not. It might seem like an old legal doctrine does not have a large impact on everyday life, but if you own your own home, or any other piece of real estate, adverse possession should interest you. For example, let’s say you own a house on some land, and you have a neighbor next door. This neighbor installs a new fence near the property line. Then, 30 years later you want to sell your house, so you have a survey done of your property. The survey reveals that that your neighbors built that fence on what was actually your property. But now, because the neighbors have used that little bit of land for such a long time and because you did not take any action to otherwise prevent them from doing so, the doctrine of adverse possession dictates that little bit of land now belongs to your neighbors. This can be an unpleasant surprise for homeowners.
Now let’s take a look at the requirements of adverse possession using the above example. The first requirement is that adverse possession must occur for a certain period of time. This period of time is usually 20 years, unless the neighbor has “color of title.” In such case, the length of time is 10 years. “Color of title” means that the neighbor has some written document that claims the neighbor owns the piece of property that you also claim to own. Second, the neighbor must be in exclusive, uninterrupted, and continuous possession of the piece of land for the entire applicable time period. This means that the neighbor must be the only person to use the property. It would not be exclusive possession if both you and your neighbor used the property. The neighbor must also possess the piece of land without interruption for the required period of time.
Third, the neighbor’s possession of the land must be hostile. This means that the neighbor possesses this piece of land without your permission. In order for the neighbor’s possession to be adverse, you, the true owner, must have notice. This is rather simple when you’re neighbors, but for more rural land, it may be difficult to know whether someone is occupying your land. One way to defeat a claim for adverse possession is by showing that you permitted your neighbor to use that land. If you can demonstrate that you gave permission to the neighbor, then the neighbor’s occupancy cannot be hostile. Fourth, the neighbor’s use of the land must be actual, open, and notorious. Actual possession means that the neighbor uses the land as an owner would. The requirement that possession be open and notorious exists because it allows the true owner, you in this case, to be on notice that the land is occupied adversely.
We hope that you have learned the basic concept of adverse possession. While blog posts like this one are convenient introductions to legal concepts, a blog post should not be considered legal advice. You may have questions about adverse possession and your own unique situation. Contact an attorney at Kelly & Brand, Attorneys at Law, LLC who can assess your situation and provide sound legal advice.