Jenna Wims Hashway, Esq.
Professor of Legal Practice Roger Williams University School of Law
Admit it, you've thought about it. What first-year law student nodding over a Property casebook hasn't at least considered the possibility of someday adversely possessing a piece of land? It's tempting to think that a little ingenuity and a lot of patience could yield a prime piece of real estate. But like many a 1L dream of post-bar life, the reality falls somewhat short of the fantasy. The overwhelming number of Rhode Island Supreme Court cases addressing adverse possession deal with boundary disputes in which, after long litigation, the would-be possessor stood to gain only a few feet at the edge of his own property.1 Is it even possible to employ this ancient doctrine today to win a sizeable piece of buildable land? Perhaps surprisingly, the answer is decidedly yes.
In September 2017, the Rhode Island Superior Court awarded four lots of land in scenic Little Compton to an adverse possessor who had assiduously and intentionally set out to stake his claim.2 Although the Rhode Island Supreme Court may yet have the final word, Justice Van Couyghen's decision in Carroll v. Rodriques, grounded as it is in fifty years of precedent, seems likely to be upheld. If it is, then the plaintiff Carroll will have given us all something in exchange for those lots of land—a tutorial on how to adversely possess land in Rhode Island.
Taking the Carroll case as a starting point, I surveyed thirty Rhode Island Supreme Court cases stretching back to 1912. Little has changed in the last century; although the high court literally raises an eyebrow3 at the doctrine of adverse possession, it still applies it with some regularity. Despite being "a legal anachronism reminiscent of a time when landowners lived on or near their land and thus could observe encroachments on their property,"4 the doctrine remains enshrined in Rhode Island law. Under § 34-7-1 of the Rhode Island General Laws, one who "shall have been for the space often (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands" can obtain title by adverse possession if he or she can establish by clear and convincing evidence "actual, open, notorious, hostile, continuous and exclusive use of the property under a claim of right."5 As to that "claim of right," one needn't be innocent of the existence of another owner—indeed, the Court has held that "black-hearted trespassers" may "still adversely possess the property in question under a claim [of] right to do so if they use it openly, notoriously, and in a manner that is adverse to the true owner's rights."6 So, let us wear our black hearts on our sleeves as we take a tour through Rhode Island's purloined parcels.
Choose your target
If you're going to invest ten years and (as you'll see below) some cash and labor in this venture, you'll want to choose the target property carefully. Although an oceanfront lot may be tempting, or a city terrace appealing, the more desirable the location, the greater the odds against adverse possession. One of the traditional justifications for the doctrine of adverse possession is that land should be put to its most productive use.7 Assuming that to be true, it should come as no surprise that the most desirable spots have long since been put to productive use. Highly valuable land is likely to be highly valued, and correspondingly closely guarded. To succeed, you'll want to find a place a bit more out of the way and overlooked.
A little spot in Colt State Park or a cabin in Lincoln Woods might sound nice, but remember, "the statute does not run against the sovereign" —you can't adversely possess public lands.8 The state, however, can acquire property by adverse possession, as it did a lake bed in Reitsma v. Pascoag Reservoir & Dam, LLC.[9If it's waterfront you're after, beware of the beach. The towns of Barrington and Little Compton were the bathing "suit" winners in adverse possession contests for their respective town beaches.10
Thanks to that Little Compton suit, I and my fellow residents can enjoy swimming at South Shore Beach.11 Little Compton seems to be something of a hotbed of adverse possession.12 It's likely that the town's off-the-beaten-path location and undeveloped nature account for its outsized presence in Rhode Island's adverse possession jurisprudence. In any event, it' s w here Mr. Carroll set his sights.13 He combed the town’s Land Evidence Records to identify properties that were not on the tax rolls.14 After finding a property with no apparent record owner, he deeded the property from himself to himself and his wife, and then recorded the deed.15 In so doing, he arguably performed a public service by assuming the taxes on property that had not previously generated any revenue for the town.
The two lots17 that Mr. Carroll identified each consisted of six or seven wooded, “mostly undeveloped” acres on Amy Hart Path. For those picturing a quiet woodland getaway, it’s worth noting that Amy Hart Path’s nearest neighbor is the Little Compton Transfer Station (known to locals as “the dump”). Again, the most valuable properties are likely fully valued. Mr. Carroll chose a property that was secluded and absent from the tax rolls—a good indication that no one would be watching it very closely. In identifying your own target property, you’d do well to follow his example.
The lots Mr. Carroll chose had been used as “woodlots.”19 A woodlot is “a privately maintained tract of land used as a source of fuel, posts and lumber,” generally “maintained as a property separate from the owner’s residence.”20 Woodlots have the advantage of offering seclusion to a would-be possessor who would prefer to establish his use of the property without drawing too much attention. That is no doubt the reason they pop up so frequently in adverse possession cases.21 Assuming you have your pick of wood-lots, choosing one with an out-of-state owner is useful.22 With luck, out of state means out of mind. Further, the wilder the wild land, the better. In Carnevale v. Dupee, although the record owner argued that “dense overgrowth of bullbriars and other mature vegetation” cloaked the possessor’s adverse use of the land, the court held that “the fact that a portion of the land [was] inaccessible and not easily visible” was not sufficient to defeat the adverse possessor’s claim.
Finally, before you choose a target in Little Compton, a word of caution. The Carroll court, in a tantalizing footnote, noted that it remains unclear precisely how many properties Mr. Carroll deeded to himself beyond the lots that were the subject of the case.24 If you find a likely lot, there remains the possibility that Mr. Carroll beat you to it.
Actual, Open, Notorious
Now that you’ve chosen your lot, you must establish your possession of it. A possessor must meet the elements of “actual, open, notorious, hostile, continuous and exclusive use of the property under a claim of right.”25 As a practical matter, the court considers “actual, open, and notorious” as one element.26 To meet this element, you needn’t pitch a tent, as actual occupation may not be necessary.27 “Rather, it is sufficient that ‘the use to which the land has been put is similar to that which would be made ordinarily of like land by the owners thereof.’”28 In other words, open and notorious use can be established in many and varied ways, as long as the use attracts “enough attention to place the world on constructive notice” of the adverse possessor’s claim.29
The most common way to establish notorious use (particularly in boundary cases) is by maintaining the property. Regular maintenance such as mowing,31 clearing land,32 and building retaining walls and fences33 announces to the world that you are openly using the property as an owner would. Half measures won’t do, however. Merely planting decorative trees, spreading a little crushed stone, and hanging some bird feeders will not suffice to put the landowner on notice of your intentions.34
The number two means of establishing notorious use in Rhode Island is a bit more scatological. Building a cesspool35 or septic system, spreading manure,37 and using an outhouse (as late as 1963, I relate with my own “raised...