2 Adverse Possession

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

2 Adverse Possession

A. Definition

An adverse possession claim is an action at law¹ in which title to real property is acquired by possession for a period of years.² At common law, adverse possession for twenty years raises a presumption of a grant and presumes ouster.³ Two statutes address the required period of years. One provides:

In every action for recovery of real property or the possession thereof the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law. The occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title unless it appears that such premises have been held and possessed adversely to such legal title for ten years before the commencement of such action.⁴ (emphasis supplied).

A second statute concerns what is called "adverse possession under color of title." It states:

Whenever it shall appear (a) that the occupant or those under whom he claims entered into possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question or upon the decree of judgment of a competent court and (b) that there has been a continued occupation and possession of the premises, or of some part of such premises, included in such instrument, decree or judgment under such claim for ten years, the premises so included shall be deemed to have been held adversely, except that when the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.⁵

A party claiming ownership under color of title must prove the elements of adverse possession.⁶ Color of title defines the extent of the claim.⁷ A co-tenant must show that his or her actions toward the property amounted to an ouster before title by adverse possession can be established.⁸ The claimant must have personally held the property and tacking is allowed only between ancestor and heir, not between successive occupants.⁹

B. Elements

A claimant asserting adverse possession must show:

(1) Actual

(2) Open

(3) Notorious

(4) Hostile

(5) Continuous, and

(6) Exclusive possession.¹⁰

C. Elements Defined

1. Actual Possession

The claimant must show actual possession for the whole of the statutory period. It is not required that the claimant actually be on the property during that time. Acts of ownership need only be exercised in ways consistent with the use to which land may be put.¹¹ "Actual possession, once taken, will continue, though the party taking such possession should not continue to rest with his foot upon the soil, until he be disseised, or until he do some act which amounts to a voluntary abandonment of possession."¹² Where a claimant presented evidence that he and his predecessors paid the mortgage and taxes for the statutory period, marked the boundary lines of the disputed property and sold timber cut from it, adverse possession was established.¹³ However, where the claimant did not actually occupy the land, did not use the property, cut no timber from it, and had not gone to it to see that a fence was maintained, there was ample evidence for the trial court to conclude that there was a lack of actual occupation.¹⁴

2. Open and Notorious Possession

The elements of open and notorious possession are generally considered together. To demonstrate open and notorious possession, it is not necessary that there be actual knowledge of the party's claim. It is sufficient that possession is so open, visible and notorious that the party against whom adverse possession is asserted should, in the exercise of ordinary diligence, have had knowledge of the adverse character of the claim.¹⁵ Where, for example, there was evidence that from 1935 until the action was brought in the 1970s, the claimant and predecessors sold cross ties from, and hunting and fishing rights on, the property, paid the taxes, and that the property was surveyed and the results discussed with surrounding owners, the possession was open and notorious.¹⁶ The determination of whether possession is open and notorious is made from the viewpoint of the legal owner exercising ordinary diligence, not from that of the adverse possessor and acts of ownership of open land, for purposes of adverse possession, need not include actual residency or occupancy.¹⁷

3. Hostile Possession

The element of adverse possession most often the subject of dispute is hostility. Mere possession of land does not show the requisite hostility to the owner.¹⁸ Hostility has been described as "possession with intention to dispossess the owners."¹⁹ Possession must be without subserviency to, or recognition of, the true owner's title, and must be hostile to it and the whole world.²⁰ If a claimant enters into possession recognizing the rights of others in the land, the claim is not hostile unless the claimant has acted in a manner to indicate an adversary position or notified the owner of his position.²¹

The relationship between the claimant and the owner is a consideration in determining whether the possession is hostile. While the claimant benefits from a general presumption that exclusive possession of land by someone who is a stranger to the holder of legal title is adverse, a familial or other relationship between the parties may defeat the presumption.²²

In a boundary dispute, possession under the mistaken belief that one owns the property without intent to claim against the true owner does not constitute hostile possession.²³However, where the controversy concerns an entire tract of land, the "mistaken belief rule'' does not apply. ²⁴

4. Continuous Possession

"It is elementary that it is essential to the acquisition of title by adverse possession that the claimant be in continuous and uninterrupted possession for the full statutory period ...".²⁵This does not require the presence of the claimant, his agent or tenant, on the property for the whole statutory period.²⁶ The nature and location of the property and whether the use to which it has been put comports with the usual management of such property should be considered in determining whether continuity of possession is broken.²⁷

5. Exclusive Possession

The claimant's possession must be such as to indicate exclusive possession.²⁸ The requirement for exclusive possession is not met if occupancy is shared with the owner or agents of the owner.²⁹

D. Burden of Proof

The party relying on adverse possession has the burden of proof to establish the claim by clear and convincing evidence.³⁰

E. Defenses

Adverse possession may be a vehicle by which a plaintiff in an action of trespass to try title seeks to establish title to land sufficient to oust the defendant.³¹ Frequently, however, it is itself an affirmative defense to an action to establish title,³² or for trespass.³³

Adverse possession will not lie against the state or its political subdivisions.³⁴

The applicable statute of limitations states:

No action for the recovery of real property or for the recovery of real property may be maintained unless it appears the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within ten years before the commencement of the action.³⁵

Another statute³⁶ provides a 40-year limitation and is said to "... provide a statute of repose, which will not be allayed by any...