adverse possession – continuous, exclusive, hostile, open, notorious enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim; the doctrine by which title or easement may be obtained by doing so for a specified period of time

     This page is continued from Property >>>> Tenancy >>>> Possession:

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      You may be surprised to learn, that under certain circumstances, a person can come onto your land, occupy it, and gain legal ownership of it.  The legal term for this is “adverse possession” (see full definition below).

     Through adverse possession, a person can gain ownership of just a few feet of property or hundreds of acres.  [1]

Definitions:

adverse possession:
(18c.)

1. The enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open, and notorious. —aka adverse dominion, though not considered an unlawful form of adverse dominion.

2. The doctrine by which title to real property is acquired as a result of such use or enjoyment over a specified period of time. ]

1. The act of occupying real property in an “open, notorious, and hostile manner,” under a claim of right, contrary to the interests of the true owner.  Such possession over a period of years is a method for acquiring title. [3]

1. An actual and visible appropriation of property commenced and continued under a claim of right inconsistent with and hostile to the claim of another.  An open and notorious possession and occupation or real property under an evident claim or color of right; a possession in opposition to the true title and real owner — a possession which is commenced in wrong and maintained in right. 3 Am J2d Adv P § 1.

The term applied in matters concerning title to lands as distinguished from incorporeal hereditaments. Anno: 27 ALR2d 325.

A title acquired by adverse possession is a title in fee simple, and is as perfect a title as one by deed from the original owner or by patent or grant from the government. Thornely v Andrews, 40 Wash 580, 82 P 899[4]

1. A person may acquire title to real property by adverse possession continued long enough to raise a presumption of a lost grant and ripen into a title by prescription, or for a period required by statute. Idaho— DeChambeau v Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999); Ill. — Klingel v Kehrer, 81 Ill. App. 3d 431, 36 Ill. Dec. 719, 401 N.E.2d 560 (5th Dist. 1980).; Ind. – Kline v Kramer, 179 Ind. App. 592, 386 N.E.2d 982 (3d Dist. 1979).; Iowa — Johnson v. Kaster, 637 N.W.2d 174 (Iowa 2001).; Me. — Striedel v. Charles-Keyt-Leaman Partnership, 1999 ME 984 (Me. 1999).

However, adverse possession cannot run against a title not in existence, and that, in the absence of proper proceedings, may never exist. Md. — Lippert v. Jung, 366 Md. 221, 783 A.2d 206 (2001). [5]

Adverse possession is the open and hostile possession of land under a claim of title to the exclusion of the true owner, which, if continued for a period prescribed by state, ripens into an actual title. Me. — Colquhoun v. Webber, 684 A.2d 405 (Me. 1996).; N.D. — Cranston v Winders, 238 N.W.2d 647 (N.D. 1976).

Title by adverse possession may be established either pursuant to common law or statutory provisions. Me. — Colquhoun v. Webber, 684 A.2d 405 (Me. 1996).

Evidence which establishes “adverse user” may differ material from that required to prove “adverse possession.” Cal. — Cleary v. Trimble, 229 Cal. App. 2d 1, 39 Cal. Rptr. 776 (3d Dist. 1964).

Adverse possession is based on possession which is hostile to the true title owner. Iowa — Johnson v. Kaster, 637 N.W.2d 174 (Iowa 2001).

The basis of title by adverse possession is the failure of the true owner to institute suit for the recovery of the land within the period designated by the statute of limitations. N.J. — Mannillo v. Gorski, 54 N.J. 378, 255 A.2d 258 (1969).; N.Y. — Reiter v. Landon Homes, Inc., 56 Misc. 2d 168, 538, 295 N.Y.S.2d 103 (2d Dep’t 1968).

Adverse possession becomes a perfect title on the theory that the true owner has by their own fault and neglect failed to assert their right against the hostile holding. Ala. — Prestwood v. Hunt, 285 Ala. 525, 234 So. 2d 545 (1970).

Establishment of title by adverse possession is based on theory that the owner has abandoned the land to the adverse possessor. Fla. — Downing v. Bird, 100 So. 2d 57 (Fla. 1958).

Title to property by adverse possession may be acquired by the application of an equitable estoppel. Fla. — King. v. Carden,, 237 So. 2d 26 (Fla. Dist. Ct. App. 1st Dist. 1970.

The goal of the doctrine fo adverse possession is the final settlement of titles. Ill. — Klingel v. Kehrer, 81 Ill. App. 3d 431, 36 Ill. Dec. 719, 401 N.E.2d 560 (5th Dist. 1980).; W.Va. — Soman v. Murchpy Fabrication & Erection Co., 160 W. Va. 84, 232 S.E.2d 524 (1977).; Wyo. — Big Horn County Com’rs v. Hinckley, 593 P.2d 573 (Wyo. 1979)[5]

1. A method of acquisition of title to real property by possession for a statutory period under certain conditions. Lowery v. Garfield County, 122 Mont. 571, 208 P.2d 478, 486.

It has been described as the statutory method of acquiring title to land by limitation. Field v. Sosby, Tex.Civ.App., 226 S.W.2d 484, 486.

Because of the statute of limitations on the bringing of actions for the recovery of land, title can be acquired to real property by adverse possession. In order to establish title in this manner, there must be proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for the statutorily prescribed period. Ryan v. Stavros, 348 Mass. 251, 203 N .E.2d 85.

State statutes differ with respect to the required length of possession from an upper limit of 20 years to a lower one of 5 years, with even more extreme time periods covering certain special cases. There may be different periods of time even within a single state, depending on whether or not the adverse possessor has color of title and/ or whether or not taxes have been paid. In some cases a longer possession is required against public entities than against individuals.

Adverse possession depends on intent of occupant to claim and hold real property in opposition to all the world, Sertic v. Roberts, 171 Or. 121, 136 P.2d 248; and also embodies the idea that owner of or persons interested in property have knowledge of the assertion of ownership by the occupant, Field v. Sosby, Tex.Civ.App., 226 S.W.2d 484, 486.

Adverse possession consists of actual possession with intent to hold solely for possessor to exclusion of others and is denoted by exercise of acts of dominion over land including making of ordinary use and taking of ordinary profits of which land is susceptible in its present state. U. S. v. Chatham, D.C.N.C., 208 F.Supp. 220, 226.

See also Constructive adverse possession; Hostile; Possession (Hostile possession; Open possession); Notorious possession; Prescription; Tacking.

adverse use – Use without license or permission; an element necessary to acquire title or easement by prescription. Shuggars v. Brake, 248 Md. 38, 234 A.2d 752. [6]

     When courts look at adverse possession claims, they apply a four-factor test, requiring the person’s occupation to be done in the following forms of possession (the term actual possession has been added below, as it helps to distinguish the term exclusive possession.)

  • hostile possession – open, notorious possession of land under a claim of an exclusive right thereto, including against the record owner’s claim.
  • open and notorious possession – possession of real property that is so conspicuous its considered as sufficient notice to a reasonable landowner that their land is subject to an adverse user— aka notorious possession.
  • continuous possession – for a certain period of time.
  • exclusive possession – possession of land by a claimant for himself, as his own, and not for another. — aka sole possession.

Related Terms:

adverse user – the act of using real property in an “open, notorious, and hostile manner,” under a claim of right, contrary to the interests of the true owner.

claim of right – entry and occupation of land with intent to claim and hold it for one’s own. — aka  claim of title; claim of ownership.

  • right of entry – the right to take or resume possession of land or other real property in a peaceable manner (including the right to go into another’s real property for a special purpose without committing trespass)
  • right of possession – a person’s right to occupy and enjoy property.

adverse claim – a claim to possession which is hostile to the true owner.

occupancy – holding, possessing, or residing in or on something, especially a dwelling or land, coupled with the performance of act(s) to manifest a claim of exclusive control, and to indicate to the public that the actor has appropriated the land, with intent to obtain legal ownership.

prescription – the acquisition of title to a thing by open and continuous possession over a statutory period, or the extinction of a title or right by failure to claim or exercise it over a long period.

  • negative prescription – extinction of a title or right by failure to claim or exercise it over a long period. — aka extinctive prescription.
  • positive prescription – acquisition of title to a thing by open and continuous possession over a statutory period. — aka acquisitive prescription.
  • prescriptive – what must or should be done based on ancient custom or long-standing use, having existed so long as to have become a matter of right.
  • prescriptive right – a right obtained by prescription.
  • period of prescription – the period fixed by local law as sufficient for obtaining or extinguishing a right through lapse of time, and other circumstances.

Prescription and Adverse Possession Compared:

     While the doctrine of prescription arises from a presumption of a grant arising from a long-documented adverse enjoyment, and differs from the doctrine of adverse possession in the nature of the right acquired, both are similar since both doctrines are determined in a similar manner and with the same consequences. [5]

     Prescription is a means of acquiring title to property by long-continued enjoyment. Iowa — Johnson v. Kaster, 637 N.W.2d 174 (Iowa 2001).; La. — Lincoln Parish School Bd. v Ruston College, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964).

In fact, title by prescription has been substituted for statutes of limitation in suits to recover land. Ga. —Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941).

It rests upon the existence or presumption of a past grant inferred from, and evidenced by, and adverse enjoyment for a period fixed by law. Iowa — Johnson v. Kaster, 637 N.W.2d 174 (Iowa 2001).; La. — Bailey v. Alexander, 376 So. 2d 620 (La. Ct. App. 4th Cir. 1979).; Vt. — Clark v. Aqua Terra Corp., 133 Vt. 54, 329 A.2d666 (1974).

Although the terms are often used interchangeably, Minn. — Romans v. Nadler, 217 Minn. 174, 14 N.W.2d 482 (1944).; “adverse possession” and “prescription” have been distinguished.  it is the nature of the right acquired which marks the principal difference between a prescriptive right and title by adverse possession, in that adverse possession concerns itself chiefly with the acquisition of an estate in fee simple absolute, while prescription is concerned with the acquisition of incorporeal hereditaments or rights in the lands of another, such as easements or right in party walls or division fences. U.S. — Bough v. Goelet, 297 F. Supp. 114 (D.V.I. 1969).; Ill — Ruck v. Midwest Hunting and Fishing Club, 104 Ill. App. 2d 185, 243 N.E.2d 834 (2d Dist. 1968).; Mo. — Glenville v. Srahl, 516S.W.2d 781 (Mo. Ct. App. 1974). The doctrine of “prescription” has reference to acquisition of nonpossessory interest in land, and the doctrine of “adverse possession” has reference to acquisition of a possessory interest, but both doctrines are determined in a comparable manner. Mont. — Brannon v. Lewis and Clark County, 143 Mont. 200, 387 P.2d 706 (1963)

     Prescription is further distinguished from adverse possession in that “prescription,” strictly speaking, is regulated by the common law which has adopted the prescriptive period from an analogy to the statute of limitations, while “adverse possession” is regulated by S=statutory provisions. Idaho Sinnett v. Werelus, 83 Idaho, 514, 365 P.2d 952 (1961); N.J. — Predham v Holfester, 32 N.J. Super, 419, 108 A.2d 458 (App. Div. 1954) (disapproved of on other grounds by Mannillo v. Gorski, 54 N.J. 378, 255 A.2d 258 (1969)).

     In other respects, prescription and adverse possession are analogous, and both doctrines are determined in the same manner. U.S. — Bough v. Goelet, 297 F. Supp. 114 (D.V.I. 1969).; Mont. — Brannon v. Lewis and Clark County, 143 Mont. 200, 387 P.2d 706 (1963).

Easement by prescription has been distinguished from adverse possession in that, while both depend on the same elements, adverse possession is based on a claim of possession while easement by prescription is based on a claim of use.  Iowa — Johbnston v. Kaster, 637 N.W.2d 174 (Iowa 2001); N.Y.  — Rasmussen v. Sgritta, 33 A.D.2d 816 (3d Dept 1969).

     Under most factual circumstances in disputes between private parties, the consequences of either theory are identical.   U.S. — Superior Oil Co. v Harsh, 126 F.2d 572 (C. C.A. 7th Cir. 1942). [5] (p.436)

Acquiescence, Laches, and Easement by Prescription distinguished from Adverse Possession:

     Acquiescence and laches, although mentioned in some judicial statements relative to prescription (Tex — Magee v. Paul, 110 Tex. 470, 221 S.W. 254 (1920)), and sometimes said to constitute the basis on which title by adverse possession is acquired (Mo. — Badger Lumber Co. v St. Louis-San Grancisco Ry. Co., 338 Mo. 349, 89 S.W.2d 954 (1935)), nevertheless differ from adverse possession (Mich. — Edmunds v. Sughrow, 233 Mich. 400, 206 N.W. 309 (1925)), and no unfavorable inference should be drawn either from the inactivity of the landowner (Ala. — Brown v. Shafer, 205 Ala. 421, 88 So. 421 (1921)) or the failure of the adverse holder to establish acquiescence.  Mich. — Edmunds v. Sughrow, 233 Mich. 400, 206 N.W. 309 (1925).  

Laches is not a defense to plaintiff’s assertion of title by adverse possession event though plaintiff may have procured title to the property many years earlier since plaintiff is under no obligation to bring suit to perfect a claim of adverse possession. Cal. — Marriage v. Keener, 26 Cal. App. 4th 186, 31 Cal. Retr. 2d 511 (3d Dist. 1994)[5]

Obtaining Adverse Title
Following the Prescriptive Period:

action to quiet title – to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it.

title by adverse possession (prescription) – a title acquired by prescription (or adverse possession). — aka adverse title.

presumed grant – a theoretical basis for the acquisition of title or prescriptive right, by adverse use.

Removal of Adverse Users:

interruption of possession – a break in the continuity of the possession of an adverse claimant in order to restore constructive possession to the owner. — aka interruption of prescription.

dispossession – deprivation of, or eviction from, rightful possession of property; the wrongful taking or withholding of possession of land from the person lawfully entitled to it. — aka ouster; disseissin.

Lawful Ways of Removal:
(and related terms)

Note: See state laws (below)to see which form of removal applies to your circumstances.

(action for) ejectment – a legal action by which a title holder who has been dispossessed and suffered damages seeks to recover possession, damages, and costs. — aka action for recovery of land.

eviction – the act or process of legally or illegally dispossessing a person of land or rental property.

  • actual eviction – physical expulsion (dispossession) of a person from land or rental property, as distinguished from constructive eviction.
  • eviction by paramount title – eviction by judicially establishing title superior to that under which the possessor claims, by evidence of one’s deed. — aka eviction by title paramount.

unlawful detainer – unjustifiable retention of the possession of real property by one whose original entry was lawful. (i.e. after a lawful eviction, successful action of ejectment, or lease has expired).

Unlawful Manners of Removal:
(and related terms)

forcible entry and detainer – 

(1) entry onto real property peaceably in the possession of another, against his will, without authority of law, by actual or threat of force, followed by the withholding of such property; or

(2) a quick and simple legal proceeding for regaining possession of real property from someone who has wrongfully taken, or refused to surrender, possession (or their right to possession has expired or been lawfully terminated). — aka forcible detainer.

buying of titles – 1. At common law, it is an high offence to buy or sell any doubtful title to lands known to be disputed, to the intent that the buyer may carry on the suit, which the seller is not able, or doth not think is worth this while to do, and on that consideration sells his pretensions at an under-rate; an it seems not to be material whether the title so sold be good or bad, or whether the seller weer in possession or not, unless his possession was lawful and uncontested.  1. Haw, 261.  And by statute 32 H. 8. c.9. non shall buy any pretenced right in any land, unless the seller has been in possession fo the same, or of the reversion of the remainder thereof; on pain that the seller shall forfeit the land, and the buyer the value thereof. [7]

buying titles – purchasing the rights to lands of parties who are out fo possession.  At common law the sale fo the legal title to land by a disseized party is void, and this is the general rule in the United States, in some of which the vendor is also punishable criminally for making such sale. [8]

FAQ: Can an adverse user demand compensation for Improvements Made Upon Real Property?

occupying claimant – someone who claims the right under a statute to recover for the cost of improvements done to land that is later found not to belong to the person.

improvement (betterment) – an addition to property (usually real estate), whether permanent or not, that increases its value and goes beyond repair or restoration.

Occupying Claimant Acts – statutes which provide a recovery by an occupying claimant, since dispossessed by the true owner, for improvements made while occupying the premises in the belief that he had good title. — aka Betterment Acts.

Various Forms of Adverse Possession:

constructive adverse possession – a type of adverse possession in which the claim arises from the claimant’s payment of taxes under color of right rather than by actual possession of the land,

NOTICE:

     There are several websites which misinform readers about adverse possession.  For instance, NOLO Press refers to persons who utilize a valid claim of entry and possession as “trespasser’s,” however by reading the above definitions and researching the process using court-recognized doctrines, it is apparent that the act of attempting a lawful claim, is not a form of trespass.  We assume this misinformation is by either mistake, or in order to protect title holders from potential claimants claiming their abandoned properties.

Adverse Possession Statutes by State:

California:

CIV §§ 1000-1002, 1006-1009 – Modes in Which Property May Be Acquired (Occupancy)

CCP §§ 1159 – 1179a – Summary Proceedings for Obtaining Possession of Real Property in Certain Cases

CCP §§ 315-330 –  The Time of Commencing Actions for the Recovery of Real Property

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Additional States to Be Added Soon.

References:

Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: NOLO Press, Adverse Possession: When Trespassers Become Property Owners”:  https://www.nolo.com/legal-encyclopedia/adverse-possession-trespassers-become-owners-46934.html

[2]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[3]: Ballantine’s Law Dictionary with Pronunciations Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[4]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[5]: Corpus Juris Secundum (“C.J.S.”) A CONTEMPORARY STATEMENT OF AMERICAN LAW AS DERIVED FROM REPORTED CASES AND LEGISLATION, Volume 2 © 2003 West.  THOMPSON – WEST.

[6]: West Publishing’s Publisher’s Editorial Staff, Black’s Law Dictionary Sixth “Centennial” Edition (1891-1991) by Henry Campbell Black, M.A..  ISBN-0-314-76271-X

[7]:  “A New Law Dictionary, Intended for General Use as well as for Gentlemen of the Profession” by Richard Burn, LL. D. (Late Chancellor of the Diocese of Carlisle) and John Burn, Esq (his son) (one of His Majesty’s Justices of the Peace fo tthe Counties of Westmorland and Cumberland).  Printed by Brett Smith in London. (1792)

[8]: A Dictionary of American and English law, with definitions of the Technical Terms fo the Canon and Civil Laws.  Also, containing a full collection of Latin maxims, and citations of by Rapalje, Steward; Lawrence, Robert Linn.  

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