Adverse Possession

Adverse possession is a legal mechanism that transfers land ownership from one owner to another outside the traditional negotiated real estate sale with its formal purchase agreement. In effect, adverse possession legitimizes the conquest of land from the record owner by a usurper’s assertion of long-term control and possession. A remnant of ancient English law, the doctrine of adverse possession is recognized in varying forms in every US state today.

Basically, if certain requirements are met, when a nonowner treats property as if it were his or her own over an extended period of time, the law may bestow actual ownership rights on the occupying nonowner.

Elements

Although the legal requirements vary some from state to state, the well established elements of adverse possession are that the possessor’s claim to the land is actual, hostile, exclusive, open and notorious, and continuous. Each state has a legal statute of limitations for such a claim; the adverse possessor must possess the land for a set number of years for legal title to vest in him or her, usually between 10 and 20, but sometimes fewer and sometimes more.

Some states also require or place significance on the payment by the adverse possessor of property taxes or on the existence of a colorable legal claim.

Because adverse possession has a drastic legal result — the transfer of ownership of property without the permission of the original owner — these elements must be clearly and strictly met.

Examples

Questions of adverse possession may arise when, for example, a fence or wall is treated as the true boundary over a long period of time, although mistakenly or knowingly erected over the legal line. Similarly, a building may jut onto adjoining property and the land around the building be used for years as a yard, even though technically not completely on the building occupier’s land. A well-established walkway or driveway used by a nonowner over land legally belonging to another may be enough to establish a valid title by adverse possession. Farming is another land use commonly giving rise to adverse possession claims.

Physical structure or alteration is not necessarily required to raise issues of adverse possession, however. Another typical example of a nonowner exercising ownership-like control over land is where the nonowner farms the land season after season.

Protect your Rights

If you suspect an assertion of adverse possession of your property by a nonowner may threaten your rightful title, consult a real estate attorney as soon as possible to learn about your rights and how to legally protect them. On the other hand, if you have used land over a long period of time as your own, despite not technically owning it, whether or not you acted with intention to take title, a real estate lawyer can advise you about possible rights in this property that may have accrued through adverse possession. A lawsuit to discern rightful ownership of such contested property may be the solution in either situation.

Similarly, a purchaser of real estate should ascertain whether anyone other than the record owner has been in control of or using the property as if it were his or her own. In such a situation, the property buyer should consult an experienced lawyer to guard his or her rights against the claims of a potential adverse possessor.

Your First Appointment With a Real Estate Attorney

To read and print out a copy of the checklist, please follow the link below.

Your First Appointment With a Real Estate Attorney

You can download a free copy of Adobe Acrobat Reader here.

Copyright © 2008 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.