Adverse Possession

Adverse possession is a legal principle that allows somebody who does not have legal title to acquire ownership rights based upon their history of possession and use of the property. In real estate law, a person possesses the land of another for an extended period of time may be able to claim adverse possession in order to gain legal title to that land.

Adverse Possession Claims

To prove adverse possession under typical state law, a person claiming ownership of land through adverse possession must show that its possession is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for a period of time defined by statute. Each of those terms has a special legal meanings as legal terms of art, meaning that for purposes of adverse possession law their definitions are different from the definitions that you would find in a standard dictionary.

Most states have passed statutes that define when an adverse possession claim may be made against real property. The remaining states apply principles of common law, along with their statute of limitations for taking action relating to the legal ownership of real property. The requirements of an adverse possession claim and the applicable statute of limitations can vary significantly between jurisdictions.

Elements of Adverse Possession

The elements of an adverse possession action involve terms that a special legal meaning that may differ from their standard definitions. The standard elements and their meaning are as follows:

Actual: The person in possession of actually acted in the manner of an owner of the property.

Open & Notorious: The person in possession engages in acts of possession that, consistent with the nature of the property at issue, are capable of being seen.

This does not mean that the person claiming adverse possession must have been observed in acts of ownership. Instead, the actual owner or members of the public must have been in a position to see the acts of possession, or the acts must have otherwise been observable.

A person claiming adverse possession need not use the property in a manner that exceeds that which would be expected of the actual owner - that is, it may be possible to claim adverse possession of a vacation property on the basis of use only during the vacation season, or to claim adverse possession of a vacant parcel of land by engaging in typical acts of maintenance for the parcel.

Exclusive: The adverse possessor exercises exclusive rights to the property, and does not occupy the land concurrent with the true owner or share possession in common with the public.

One does not have to exclude others from the land in order to claim exclusive use, but during the statutory period the person claiming title by adverse possession must have been the only person to treat the land in the manner of an owner.

Hostile: Hostility exists where a person possesses the land of another intending to hold to a particular recognizable boundary regardless of the true boundary line. That is, possession is hostile to the title owner's interest in the property. You cannot claim adverse possession if you are engaged in the permissive use of somebody else's land.

If possession was not hostile, it may still be possible to advance a claim of ownership under a theory of acquiescence to a boundary line.

Under Cover of Claim or Right: This element is satisfied when the person claiming adverse possession of the property makes the claim based upon constructive possession under color of title (for example, where there is an error in the legal description in their deed that leads the person in possession to believe they own part of a neighboring property), or makes the claim based upon actual use and possession of the area of land at issue for the statutory period.

Continuous & Uninterrupted: All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful.

It may be possible to claim adverse possession even if there is a transfer of ownership through the principle of tacking, a legal term for combining successive periods of possession to satisfy the statute of limitations. For example, if a former owner's twelve years of adverse possession can be tacked to the present owner's eight years, the current owner may claim a twenty year period of continuous adverse possession.

The Statutory Period: The statutory period, or statute of limitations, is the amount of time that the claimant must hold the land while satisfying all of the other elements of an adverse possession claim, in order to successfully gain title.

Common Defenses to Adverse Possession

While the following list is far from exhaustive, common defenses brought in adverse possession actions include:

  • Permissive Use - If the actual owner has granted the claimant permission to use the property, the claim of adverse possession cannot be deemed hostile and thus fails. A use that occurs with permission from the owner can never support a claim of adverse possession.

  • Public Lands - In most states, government-owned land are exempt from adverse possession claims.

  • Insufficient Acts - Although it is conceded that the claimant engaged in some use of the property, the property owner may allege that the claimant's acts were not sufficient to suggest a claim of ownership.

  • Non-Exclusive Use - Although it is conceded that the claimant engaged in some use of the property, it is alleged that others (usually the property owner) also used the property in a manner consistent with that of the landowner.

  • Insufficient Time - Even if various elements of adverse possession are met, it is alleged that the adverse possession did not last for the full statutory period, or that the adverse possession was interrupted by a period of non-use and was thus not continuous for the statutory period.

Copyright © 2004 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.