Adverse Possession


In common law, adverse possession is the name given to the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time.

The law of adverse possession is entirely statutory, arising out of a statutory limitation period or statute of limitations.

Requirements for Adverse Possession:

Adverse possession requires three elements in regards to the possession of the property
physical (actual, visible, notorious, exclusive)
mental (hostile)
temporal (continuous)

In simple terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. Where the property is of a type ordinarily only occupied during certain times (such as a summer cottage), the adverse possessor may only need to be in exclusive, open, hostile possession during those successive useful periods.

Effect of Adverse Possession:

An adverse possessor will be committing a trespass on the property that they have taken and the owner of the property could cause them to be evicted by an action in trespass. All common law jurisdictions require that the action of trespass is brought within a specified time. The effect of a failure by the land owner to evict the adverse possessor depends on the jurisdiction.

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

In other jurisdictions, the adverse possessor acquires merely an equitable title: the land owner being a trustee of the property for them.

Adverse possession only extends to the property adversely possessed. If the original owner had a title to a greater area (or volume) of property, the adverse possessor does not obtain all of it.

In some jurisdictions, someone who has successfully obtained title to property by adverse possession may bring an action in quiet title of record in their names on some or all of the former owner's property.

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

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.

Squatter's Rights:

Adverse possession is sometime 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 time period, or even gives his permission, the "clock" usually stops. For example, if the required time period in a given jurisdiction is twenty years and the squatter is removed after only fifteen years, the squatter loses the benefit of that 15 year possession (i.e., the "clock" is re-set to "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 twenty years after the date on which the squatter retook possession. In this example, the squatter would have to have held the property for a total of 35 years (the 15 original years plus the 20 later years) to acquire title.

However, one squatter may pass along continuous possession to another squatter, known as "tacking", until the adverse possession period is complete. 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 adverse possessor, 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 it 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 homestead principle and squatter's rights embody the most basic concept of property and ownership, which can be summed up by the adage "possession is nine-tenths of the law", in other words, "the person who uses the property owns it". The homestead principle and squatter's rights pre-date formal property laws and to a large degree modern property law is a formalization and expansion of these simple ideas.

The homestead principle is the idea that if no one is using or possessing property, the first person to claim it and use it consistently over a period of time 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 of time 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 fundamental homestead principle in the same way that the right of adverse possession is a formalization of the fundamental and pre-existing principle of squatter's rights.

Adverse Easements:

Adverse possession grants only those rights in the adversely possessed property which are 'taken' by the adverse possessor. For example, an adverse possessor might choose to take an easement, rather than the entire fee title to the property. In this manner, it is possible to adversely possess an easement, under the legal doctrine of prescription. This must also be done openly but need not be exclusive, and must outlast the same required statutory eviction period. 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 in order to prevent the creation of a permanent easement and compromise their exclusive property rights.

Furthermore, 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), they 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, and nothing is done to remove or circumvent the obstacle, and the statutory period expires, then the easement ceases to have any legal force, even though the deed held by the fee simple owner stated that the owner's interest was subject to the easement.

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.