No Room for Squatters: Alaska's Adverse Possession Law

Publication year2011


Alaska Law Review
Volume 28, No. 2, December 2011
Cited: 28 Alaska L. Rev. 341


Jennie Morawetz [*]


In 2003, the Alaska Legislature dramatically changed Alaska's adverse possession law. Alaska's new law curtails the application of adverse possession in a way that is more stringent than any other state's law. This Note summarizes Alaska's adverse possession law prior to 2003 and discusses how it was changed in 2003 by the passage of Senate Bill 93. The Note then explores some implications of the new law: the ability to extinguish but not create private easements by prescription, the importance of recording, and the potential for a "good faith squatter" to lose land she believes is hers.


On April 16, 2003, the Alaska Senate Judiciary Committee met to discuss Senate Bill 93, the goal of which was to "repeal the Doctrine of Adverse Possession in the case of 'bad faith' trespassers, giving private property owner's [sic] security in knowing their property cannot be taken by squatters." [1] The traditional doctrine of adverse possession allows adverse possessors to gain title to property possessed in a continuous, exclusive, open, notorious, and hostile manner [2] for a certain number of years. [3] The doctrine has over 800 years of common law history, [4] and it had over 100 years of history in Alaska prior to 2003. [5] Nevertheless, Jon Tillinghast-legal counsel for Sealaska Corporation, the author of Senate Bill 93-boldly declared to the Senate Judiciary Committee, "Justice Brandeis said that states serve as laboratories for improvement of our laws. . . . Alaska is the first state to take a hard look at . . . whether [adverse possession] serves any continuing social utility." [6] The house and senate had no trouble deciding that, at least in the case of "bad faith squatters," adverse possession served no continuing utility, [7] and the Governor signed Senate Bill 93 into law on July 17, 2003. [8]

Prior to 2003, the Alaska Supreme Court's adverse possession jurisprudence took Alaska's unique circumstances into account in a way that was perhaps more favorable to adverse possessors than to record owners. For example, the Alaska Supreme Court has stated that the exclusivity and continuity of an adverse possession are determined in light of the character of the land in question and how an average owner would use the land. [9] In the rural areas that constitute the vast majority of Alaska, the court has held that the continuity requirement may be met when the use is seasonal, [10] and the exclusivity requirement may be met even though the adverse possessor allowed clamdiggers to use the property. [11] Likewise, the court has held that lesser acts than would be required in urban areas may be sufficient to establish open possession in rural areas. [12] Practically speaking, these lesser requirements may have made it easier for adverse possessors to gain title to rural land in Alaska. In addition, by focusing on the conduct of the adverse possessor, the court may have overlooked the fact that a record owner's use of the land also depends on its character. [13] Although it is not at all clear that prior to 2003 bad faith squatters were running rampantly around rural Alaska taking advantage of Alaska's adverse possession law, [14] the Alaska Legislature felt a need to provide record owners with additional protections. With Senate Bill 93, the legislature sought to remove "the harsh burden of policing . . . large expansive lands to insure [sic] that a squatter has not taken up residency." [15]

The statutory revisions in Senate Bill 93 effected sweeping changes to Alaska's adverse possession law. However, these changes have gone relatively unnoticed. [16] Moreover, the Alaska Supreme Court has not yet had the opportunity to define the exact contours of the revised statutes, so it is still unclear how the changes will play out in practice. This Note is an attempt to clarify Alaska's adverse possession law and to point out some of the possible implications of the 2003 revisions. It begins by briefly examining the historical roots of adverse possession. Because much of Alaska's pre-2003 adverse possession law will still be relevant under the revised statutes, Part II critically examines Alaska's adverse possession law as it existed prior to 2003. Part III discusses the 2003 revisions, and Part IV examines some of the implications of those revisions.

I. A Brief History of Adverse Possession and Its Justifications

The traditional adverse possession doctrine has its roots in early English statutes of limitations that barred actions to recover possession of land after a certain amount of time had passed. [17] Today, all American states have statutes of limitation requiring that actions to recover land be brought within a certain amount of time. [18] Most American statutes of limitation do not expressly state that the former owner can lose title to an adverse possessor after the running of the statute. [19] However, courts have construed the statutes to transfer perfect title to adverse possessors. [20] The ability to gain title via adverse possession originated at a time when title and possession were inseparable. [21] Consequently, to show an adverse possession was sufficient to be equated with ownership, and thus that the true owner had a cause of action against the adverse possessor throughout the statutory period, a modern adverse possessor must generally prove her possession was actual, adverse, open and notorious, exclusive, continuous, and uninterrupted for the statutory period. [22]

Traditional justifications for the doctrine of adverse possession include barring "stale" claims, punishing owners for their neglect, encouraging the development of land, and quieting title. [23] The Alaska Supreme Court has stated:

[T]he adverse possession statutes keep stale cases out of the courts . . . . They exist because of a belief "that title to land should not long be in doubt, that society will benefit from someone's making use of land the owner leaves idle, and that third persons who come to regard the occupant as owner may be protected." [24]

Some modern scholars have suggested that the doctrine of adverse possession should be reformed because many of these traditional rationales are no longer relevant. [25] Others have criticized adverse possession on the ground that it encourages the development-"and thus environmental degradation-of wild lands," [26] a concern particularly applicable to Alaska. Finally, in response to concerns about the potential inequity of adverse possession, a few legislatures in other states have taken steps to curb its application. [27] However, none have been quite so bold as the Alaska Legislature.

II. Adverse Possession Law in Alaska Before 2003

A. The Statutes Prior to 2003

Alaska has two statutes governing adverse possession. Portions of these statutes existed before the 2003 amendments and were unchanged by the 2003 amendments. These portions read as follows:

Sec. 09.10.030. Actions to recover real property.
(a) [A] person may not bring an action for the recovery of real property or for the recovery of the possession of it unless the action is commenced within 10 years. An action may not be maintained . . . for the recovery unless it appears that the plaintiff, an ancestor, a predecessor, or the grantor of the plaintiff was seized or possessed of the premises in question within 10 years before the commencement of the action. [28]
Sec. 09.45.052. Adverse Possession.
(a) The uninterrupted adverse notorious possession of real property under color and claim of title for seven years or more . . . is conclusively presumed to give title to the property except as against the state or the United States. [29]

The language of section 09.10.030(a) of the Alaska Statutes, as set forth above, became part of Alaska's laws in 1884 when the Alaska organic Act made the "general laws" of oregon applicable to Alaska. [30] The statutory language remained the same after Alaska became an official territory in 1912 [31] and after Alaska became a state in 1959. [32] The language of section09.45.052(a) of the Alaska Statutes has a similarly long history in Alaska, [33] though it did not come from Oregon. [34]

Courts have construed these two statutes to give adverse possessors title to privately owned land [35] when the land is occupied for the statutory period under certain conditions. [36] An adverse possessor can tack her adverse possession to that of a predecessor as long as there is privity. [37] Privity exists when there is "continuous possession by mutual consent." [38] Unlike many other states, Alaska does not have a statute that tolls the running of the statute of limitations when the true owner is a minor or under a disability when the adverse possessor enters the land. [39] Also, although the Alaska Supreme Court has not previously addressed the issue, it would likely hold-as most states have - that the statutory period does not begin to run against the holder of a future interest until the future interest becomes possessory. [40]

B. The Alaska Supreme Court's Pre-2003 Adverse Possession Jurisprudence

1. Section 09.10.030(a)

on its face, section 09.10.030(a) of...

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