Adverse Possession

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Adverse possession is a concept in law which concerns title of a real property

In common law, adverse possession is the process by which title to another's real property is acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period. Circumstances of the adverse possession determine the type of title acquired by the disseisor (the one who obtains the title as a result of the adverse possession action), which may be fee simple title, mineral rights, or other interest in real property.

Adverse possession's origins are based both in statutory actions and in common law precepts, so the details concerning adverse possession actions vary by jurisdiction. The required period of uninterrupted possession is governed by the statute of limitations. Other elements of adverse possession are judicial constructs.

History

At common law where entitlement to possession of land was in dispute (originally only in what were known as real actions) the person claiming a right to possession could not allege that the land had come into their possession in the past (in older terminology that they had been "put into seisin") at a time before the reign of Henry I. There was thus a cut off date going back into the past before which the law would not be interested. There was no requirement for a defendant to show any form of adverse possession.

As time went on, the date was moved by statute first to the reign of Henry II and then to the reign of Richard I. No further changes were made of this kind.

By the reign of Henry VIII the fact that there had been no changes to the cutoff date had become very inconvenient and a new approach was taken whereby the person claiming possession had to show possession of the land a certain number of years (60, 50 or 30 depending on the kind of claim made) before the date of the claim. Later statutes have shortened the limitation period in most common law jurisdictions.

Purpose and moral basis

Adverse possession exists to cure potential or actual defects in real estate titles by putting a statute of limitations on possible litigation over ownership and possession.

Because of the doctrine of adverse possession, a landowner can be secure in title to his land. Otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. The doctrine of adverse possession prevents this.

Adverse possession is based on the doctrine of laches, which states that failing to assert a right or claim in a timely manner can prejudice an adverse party. This doctrine is defined as neglecting to do what should or could have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.

This means the law may be used to reward a person who possesses the land of another for a requisite period of time. Failure of a landowner to exercise and defend his property rights for a certain period may result in the permanent loss of the landowner's interest in the property.

An example of this would be if a landowner saw that his neighbor had begun building a house on the first landowner's land, due to an error in determining the intervening property line. If the landowner waits until the house is completed and then sues his neighbor because the house is on the first landowner's property, he has wrongly gained a house on his land at his neighbor's expense. The same principle also applies to other work that improves the land from a wild state.

Requirements for adverse possession

The adverse party is called the "disseisor", meaning one who dispossesses the true owner of the property.

Adverse possession requires, as a minimum, the following five conditions being met to perfect the title of the disseisor (some jurisdictions further require the possession to be made under a claim of title or a claim of right and/or other requirements listed below): Actual possession of the property Open and notorious use of the property Exclusive use of the property Hostile or adverse use of the property Continuous use of the property Actual possession: the disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking on land, or hunting, does not establish actual possession. His actions must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, cutting timber, mining, fencing, pulling stumps, running livestock and constructing buildings or other improvements.

Taxes: paying taxes does not establish actual possession, but may be admitted by some courts as evidence of claim of right. For example, if the true owner regularly pays taxes on the land, even while a disseisor has taken actual possession of the land by his regular use and improvement of it, the true owner's payment of taxes does not affect the disseisor's actual possession. However, if the disseisor were to pay taxes over the same period that he was using and improving the land, the court might find that his payment of taxes was evidence that he believed he had a "claim of right" to the land.

Open and notorious: the disseisor's use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.

Exclusive: the disseisor holds the land to the exclusion of the true owner. Renters, hunters or others who enter the land with the permission of the true owner fail to have exclusive possession. (Note: There may be more than one adverse possessor, taking as tenants in common, so long as the other elements are met.)

Hostile or adverse: objective view--used without true owner’s permission and inconsistent with true owner’s rights. Bad faith or intentional trespass view--used with the adverse possessor’s subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility). Good faith view--a few courts have required that the party mistakenly believed that it is his land. All views require that the disseisor openly claim the land against all possible claims.

Continuous: the disseisor must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor’s time on the land, not how long true owner has been dispossessed of it. Occasional activity on the land with long gaps in activity fail the test of continuous possession. Courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal action, and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of the disseisor's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.

Popular mnemonic devices for use in memorizing the elements of adverse possession are: An ECHO (Actual, Notorious, Exclusive, Continuous, Hostile, Open), A Hooker ON Every Corner (Actual, Hostile, Open, Notorious, Exclusive, Continuous) and a HELUVA problem (Hostile, Exclusive, Lasting, Uninterrupted, Visible and Actual).

In addition to the above basic components of an adverse possession action, some courts require (by common law or statute), some or all of the following activities: Claim of title or claim of right. The Supreme Court of the United States has ruled that the mere intent to take the land as one's own constitutes "claim of right". Other cases have determined that a claim of right exists if the person believes he has rightful claim to the property, even if that belief is mistaken. A negative example would be a timber thief who sneaks onto a property, cuts timber not visible from the road, and hauls the logs away at night. His actions, though they demonstrate actual possession, also demonstrate knowledge of guilt, as opposed to claim of right. Good faith (in a minority of states) or bad faith (Maine Rule; however, not used in Maine anymore) Improvement, cultivation, or enclosure Payment of property taxes Not under force of arms. Dispossession by armed invasion does not establish a claim of adverse possession against the true owner.

Summary

The disseisor must openly occupy the property exclusively, keeping out others, and use it as if it were his own.

Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continual (although not necessarily continuous or constant) without challenge or permission from the lawful owner, for a fixed statutory period to acquire title.

Where the property is of a type ordinarily occupied only during certain times (such as a summer cottage), the disseisor may need to have only exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.

Effect of adverse possession

A disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession.

In some jurisdictions (such as England and Wales), the title of the landowner will be automatically extinguished once the relevant limitation period has passed. This process now applies to only unregistered land.

In other jurisdictions, the disseisor acquires merely an equitable title; the landowner is considered to be a trustee of the property for the disseisor.

Adverse possession extends to only the property actually possessed. If the original owner had a title to a greater area (or volume) of property, the disseisor does not obtain all of it. The exception to this is when the disseisor enters the land under a color of title to the entire parcel, his continuous and actual possession of a small part of that parcel will perfect his title to the entire parcel defined in his color of title. Thus a disseisor need not build a dwelling on, or farm on, every portion of a large tract in order to prove possession, as long as his title does correctly describe the entire parcel.

In some jurisdictions, a person who has successfully obtained title to property by adverse possession may (optionally) bring an action in land court to "quiet title" of record in his name on some or all of the former owner's property. Such action will make it simpler to convey the interest to others in a definitive manner, and also serves as notice that there is a new owner of record, which may be a prerequisite to benefits such as equity loans or judicial standing as an abutter. Even if such action is not taken, the title is legally considered to belong to the new titleholder, with most of the benefits and duties, including paying property taxes to avoid losing title to the tax collector. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another. (Many jurisdictions have accepted tax payment for the same parcel from two different parties without raising an objection or notifying either party that the other had also paid.)

Adverse possession does not typically work against property owned by a government agency.

The process of adverse possession would require a thorough analysis if private property is taken by eminent domain, after which control is given to a private corporation (such as a railroad), and then abandoned.

Where land is registered under a Torrens title registration system or similar, special rules apply. It may be that the land cannot be affected by adverse possession (as was the case in England and Wales from 1875 to 1926), or that special rules apply.

Adverse possession may also apply to territorial rights. In the United States, Georgia lost an island in the Savannah River to South Carolina, when South Carolina used fill from dredging to attach the island to its own shore. Since Georgia knew of this yet did nothing about it, the U.S. Supreme Court (which has original jurisdiction in such matters) granted this land to South Carolina, although the Treaty of Beaufort (1787) explicitly specified that the river's islands belonged to Georgia.

England and Wales

In England and Wales, adverse possession has been governed by the Limitation Act 1980, the Land Registration Act 1925 and the Land Registration Act 2002. Different rules are in place for the limitation periods of adverse possession in unregistered land and registered land.

For unregistered land, the Limitation Act of 1980 states that a squatter must remain in adverse possession for 12 years, at which point the paper owner's title to the land is extinguished.

For registered land, adverse possession claims completed before 13 October 2003 (the date the 2002 Act came into force) are governed by section 75(1) and 75(2) of the Land Registration Act of 1925. The limitation period remains the same (12 years) but instead of the original owner's title to the land being extinguished, the original owner holds the land on trust for the adverse possessor. The adverse possessor can then apply to be the new registered proprietor of the land.

The position of a registered landowner was significantly improved by the Land Registration Act of 2002. Where land is registered, the adverse possessor may apply to be registered as owner after 10 years of adverse possession and the Land Registry must give notice to the true owner of this application. This gives the landowner a statutory period of time 65 business days] to object to the adverse possession, and if they do so the application fails. Otherwise, the squatter becomes the registered properietor according to the land registry. If the true owner is unable to evict the squatter in the two years following the first application, the squatter can apply again after this period and be successful despite the opposition of the owner. The process effectively prevents the removal of a landowner's right to property without his knowledge, while ensuring squatters have a fair way exercising their rights.

Where a tenant adversely possesses land, there is a presumption that he is doing so in a way that will benefit his landlord at the end of his term. If the land does not belong to his landlord, the land will become part of both the tenancy and the reversion. If the land does belong to his landlord, it would seem that it will be gained by the tenant but only for the period of his term.

Squatter's rights

Adverse possession is sometimes called "squatters' rights." If the squatter abandons the property for a period, or if the rightful owner effectively removes the squatter's access even temporarily during the statutory period, or gives his permission, the "clock" usually stops. For example, if the required period in a given jurisdiction is twenty years and the squatter is removed after only 15 years, the squatter loses the benefit of that 15-year possession (i.e., the clock is re-set at zero). If that squatter later retakes possession of the property, that squatter must, in order to acquire title, remain on the property for a full 20 years after the date on which the squatter retook possession. In this example, the squatter would have held the property for a total of 35 years (the original 15 years plus the later 20 years) to acquire title.

Depending on the jurisdiction, one squatter may not pass along continuous possession to another squatter, known as "tacking", until the adverse possession period is complete. Tacking is valid only if the conveyance of the property from one adverse possesser to another is founded upon a written document (usually an erroneous deed), indicating "color of title." This concept is known as privity, a requirement for tacking under some statutes. If tacking requires privity in the jurisdiction, a squatter claiming adverse possession without a foundation on a written document (claim of right) may not tack previous periods of adverse possession onto his own for purposes of running out the statutory period.  A lawful owner may also restart the clock at zero by giving temporary permission for the occupation of the property, thus defeating the necessary "continuous and hostile" element. Evidence that a squatter paid rent to the owner would defeat adverse possession for that period.

Comparison to homesteading

Adverse possession is in some ways similar to homesteading. Like the disseisor, the homesteader may gain title to property by using the land and fulfilling certain other conditions. In homesteading, however, the possession of the property is not hostile; the land is either considered to have no legal owner or is owned by the government. The government allows the homesteader to use the land with the expectation that the homesteader who fulfills the requirements necessary for the homestead will gain title to the property.

The principles of homesteading and squatter's rights embody the most basic concept of property and ownership, which can be summarized by the adage "possession is nine-tenths of the law," meaning the person who uses the property effectively owns it. Likewise, the adage, "use it or lose it," applies. The principles of homesteading and squatter's rights predate formal property laws; to a large degree, modern property law formalizes and expands these simple ideas.

The principle of homesteading is that if no one is using or possessing property, the first person to claim it and use it consistently over a specified period owns the property. Squatter's rights embodies the idea that if one property owner neglects property and fails to use it, and a second person starts to tend and use the property, then after a certain period the first person's claim to the property is lost and ownership transfers to the second person, who is actually using the property.

The legal principle of homesteading, then, is a formalization of the homestead principle in the same way that the right of adverse possession is a formalization of the pre-existing principle of squatter's rights.

The essential ideas behind the principles of homesteading and squatter's rights hold generally for any type of item or property of which ownership can be asserted by simple use or possession. In modern law, homesteading and the right of adverse possession refer exclusively to real property. In the realm of personal property, the same impulse is summarized by the adage "finders/keepers" and is formalized by laws and conventions concerning abandoned property.

Copyrights

Some legal scholars have proposed to extend the concept of adverse possession to intellectual property law, in particular to reconcile intellectual property and antitrust law or to unify copyright law and property law.

Adverse possession of easements

Adverse possession grants only those rights in the disseized property that are 'taken' by the disseisor. For example, a disseisor might choose to take an easement rather than the entire fee title to the property. In this manner, it is possible to disseize an easement, under the legal doctrine of prescription. This must also be done openly but need not be exclusive. Prescription is governed by different statutory and common law time limits to adverse possession. It is common practice in cities such as New York, where builders often leave sidewalk space or plazas in front of their buildings to meet zoning requirements, to close public areas they own periodically to prevent the creation of a permanent easement that would cloud their exclusive property rights.

If a property owner interferes with an easement upon his property in a manner that satisfies the requirements for adverse prescription (e.g. locking the gates to a commonly used area, and nobody does anything about it), he will successfully extinguish the easement. This is another reason to quiet title after a successful adverse possession or adverse prescription: it clarifies the record of who should take action to preserve the adverse title or easement while evidence is still fresh.

For example, given a deeded easement to use someone else's driveway to reach a garage, if a fence or permanently locked gate prevents the use, nothing is done to remove and circumvent the obstacle, and the statutory period expires, then the easement ceases to have any legal force, although the deed held by the fee-simple owner stated that the owner's interest was subject to the easement.

Strictly speaking, prescription works in a different way to adverse possession. Adverse possession is concerned with the extinction of the title of the original owner by a rule of limitation of actions. Prescription, on the other hand, is concerned with acquiring a right that did not previously exist.

Non-common law jurisdictions

Some non-common law jurisdictions have laws similar to adverse possession. For example, Louisiana has a legal doctrine called acquisitive prescription, which is derived from French law.

In Roman law, usucapio laws allowed someone who was in possession of a good without title to become the lawful proprietor if the original owner didn't show up after some time (one or two years), unless the good was obtained illegally (by theft or force). Stemming from Roman law, adverse possession is recognized for instance in Romanian property law which establishes two time periods for the acquisition of property: 30 years and 10–20 years depending on the bona fidae of the possessor and the location of the parties involved.

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