Adverse Possession

• Author: Jeffrey Lehman, Shirelle Phelps

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A method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by state law. PERSONAL PROPERTY may also be acquired by adverse possession.

Adverse possession is similar to prescription, another way to acquire title to real property by occupying it for a period of time. Prescription is not the same, however, because title acquired under it is presumed to have resulted from a lost grant, as opposed to the expiration of the statutory time limit in adverse possession.

Real Property

Title to land is acquired by adverse possession as a result of the lapse of the STATUTE OF LIMITATIONS for EJECTMENT, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession

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depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made.

The legal theory underlying the vesting of title by adverse possession is that title to land must be certain. Since the owner has, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period of time is recognized as its owner.

Title by adverse possession may be acquired against any person or corporation not excepted by statute. Property held by the federal government, a state, or a MUNICIPAL CORPORATION cannot be taken by adverse possession. As long as the property has a public use, as with a highway or school property, its ownership cannot be lost through adverse possession.

Anyone, including corporations, the federal government, states, and municipal corporations, can be an adverse possessor.

Elements In order that adverse possession ripen into legal title, nonpermissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the uses to which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by a PREPONDERANCE OF THE EVIDENCE.

Actual Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A TRESPASS may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property?for example, planting and harvesting crops or cutting and selling timber?indicates actual possession. In some states acts that...