Real Estate & Property Law

Adverse Possession

Adverse possession is a legal doctrine that allows a person to claim a property right in land owned by another. Common examples of adverse possession include continuous use of a private road or driveway, or agricultural development of an unused parcel of land. By favoring the adverse possessor over the true landowner, the doctrine of adverse possession rewards the productive use of land and punishes landowners who "sleep on their rights."

Effect of Adverse Possession

While adverse possession alone does not result in a transfer of legal title, adverse possession gives a person a vested property right in the area possessed. Once a person meets the statutory requirements for adverse possession, he or she may initiate a quiet title action and obtain legal title to the property.

Requirements

The requirements for adverse possession are governed by state statute and may vary significantly between jurisdictions. A typical adverse possession statute requires that the following elements be met:

  • Open and Notorious. The person seeking adverse possession must occupy a parcel of land in a manner that is open and obvious. The person may not occupy the land secretively or make efforts to remain undetected. A landowner is not required, however, to have actual knowledge of the occupation.
  • Exclusive. The land must be occupied exclusively by the person seeking adverse possession and may not be shared with the public or the true owner.
  • Hostile. The occupation must be hostile and adverse to the interests of the true owner. If a landowner has given a person permission to use the property, the possession is not considered hostile. However, a landowner is not required to have actual knowledge of the occupation, so long as the occupation is adverse to the owner's property interests. For example, a landowner may be unaware that his neighbor's fence extends several feet over his property line. The occupation is sufficiently hostile, however, because the landowner has not given his neighbor permission to encroach upon his property in this manner.
  • Statutory Period. Possession of the land must continue for the state's predetermined statutory period. The statutory period for adverse possession may be as short as three years or as long as twenty years. Many jurisdictions allow an adverse possessor to "tack on" his or her period of adverse possession to a previous possessor's period, so long as there is no lapse in time between the two occupations. A statutory period will not begin running if a landowner is an infant (below the age of majority), if the landowner is deemed insane, or if the landowner is incarcerated. If the landowner suffers from one of the above conditions during the statutory period, the statutory period will not be tolled and may continue uninterrupted.
  • Continuous and Uninterrupted. All elements of adverse possession must be met at all times during the statutory period. However, an adverse possessor is entitled to use the property in a manner consistent with the type of property being possessed. For example, use of a ski lodge may be continuous even if it is only used during the winter months.

Limits on Adverse Possession

Adverse possession is not available in all situations. For example, title to government-owned land may not be obtained by adverse possession.