{"id":15722,"date":"2018-03-20T19:46:21","date_gmt":"2018-03-20T19:46:21","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=15722"},"modified":"2020-05-24T23:38:15","modified_gmt":"2020-05-24T23:38:15","slug":"adverse-possession-enjoyment-of-real-property-with-a-claim-of-right-when-that-enjoyment-is-opposed-to-another-persons-claim-and-is-continuous-exclusive-hostile-open-and-notorious-and-the-doct","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=15722","title":{"rendered":"adverse possession – method for obtaining real property from a record owner via occupancy"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from Property<\/a> >>>> Tenancy<\/a> >>>> Possession<\/a>:<\/span><\/span>
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\u00a0 \u00a0 \u00a0 You may be surprised to learn, that under certain circumstances, a person can come onto your land, occupy<\/a> it, and gain legal ownership of it. \u00a0The legal term for this is “adverse possession<\/span>”\u00a0<\/span><\/strong>(see full definition below).<\/strong><\/span><\/em><\/p>\n

\u00a0 \u00a0 \u00a0Through adverse possession, a person can gain ownership<\/a> of just a few feet of property or hundreds of acres. \u00a0<\/span><\/strong>[1]<\/span><\/p>\n

Definitions:<\/span><\/strong><\/p>\n

adverse possession<\/span>:<\/span>
\n<\/strong>(18c.)<\/span><\/span><\/p>\n

1. The enjoyment of real property<\/a> with a claim of right<\/a><\/span> when tha<\/span>t enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open, and notorious<\/a>.<\/strong>\u00a0\u2014aka adverse dominion<\/em><\/span>, though not considered an unlawful form of adverse dominion<\/span>.<\/strong>
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2. The doctrine by which title to\u00a0real property<\/a> is acquired as a result of such use or enjoyment over a specified period of time<\/a>.<\/span><\/strong>\u00a0]<\/span>
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1. The act of occupying real property<\/a><\/span><\/span> in an “open, notorious, and hostile manner,” under a claim of right<\/a><\/span><\/span>, contrary to the interests of the true owner.\u00a0 Such possession over a period of years is a method for acquiring title.<\/strong><\/span>\u00a0[3]<\/span><\/p>\n

1. An actual and visible appropriation of property commenced and continued under a claim of right<\/a> <\/span><\/span> inconsistent with and hostile<\/a> to the claim of another.\u00a0 An open and notorious possession<\/a> and occupation or real property under an evident claim or color of right; a possession in opposition to the true title and real owner \u2014 a possession which is commenced in wrong and maintained in right. 3 Am J2d Adv P \u00a7 1<\/span>.<\/span><\/strong><\/p>\n

The term applied in matters concerning title to lands as distinguished from incorporeal hereditaments. Anno: 27 ALR2d 325<\/span>.<\/span><\/strong><\/p>\n

A title acquired by adverse possession<\/a> is a title in fee simple<\/a>, 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<\/em>, 40 Wash 580, 82 P 899<\/span>.\u00a0<\/span><\/strong>[4]<\/span><\/p>\n

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.\u00a0Idaho\u2014 DeChambeau v Estate of Smith<\/em>, 132 Idaho 568, 976 P.2d 922 (1999);<\/span> Ill.\u00a0\u2014 Klingel v Kehrer<\/em>, 81 Ill. App. 3d 431, 36 Ill. Dec.\u00a0719, 401 N.E.2d 560 (5th Dist. 1980).;<\/span> Ind.\u00a0\u2013 Kline v Kramer<\/em>, 179 Ind. App. 592, 386 N.E.2d 982 (3d Dist. 1979).;<\/span> Iowa\u00a0\u2014 Johnson v. Kaster<\/em>, 637 N.W.2d 174 (Iowa 2001).;<\/span> Me.\u00a0\u2014 Striedel v. Charles-Keyt-Leaman Partnership<\/em>, 1999 ME\u00a0984 (Me. 1999).<\/span><\/strong><\/span><\/p>\n

However, adverse possession cannot run against a title not in existence, and that, in the absence of proper proceedings, may never exist. Md.\u00a0\u2014 Lippert v. Jung<\/em>, 366 Md. 221, 783 A.2d 206 (2001)<\/span>.<\/strong> [5]<\/span><\/p>\n

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.\u00a0\u2014 Colquhoun v. Webber<\/em>, 684 A.2d 405 (Me. 1996)<\/span>.; N.D.\u00a0\u2014 Cranston v Winders<\/em>, 238 N.W.2d 647 (N.D. 1976)<\/span>.<\/span><\/strong><\/p>\n

Title by adverse possession may be established either pursuant to common law or statutory provisions. Me.\u00a0\u2014 Colquhoun v. Webber<\/em>, 684 A.2d 405 (Me. 1996)<\/span>.<\/span><\/strong><\/p>\n

Evidence which establishes “adverse user” may differ material from that required to prove “adverse possession.” Cal.\u00a0\u2014 Cleary v. Trimble<\/em>, 229 Cal. App. 2d 1, 39 Cal. Rptr. 776 (3d Dist. 1964)<\/span>.<\/span><\/strong><\/p>\n

Adverse possession is based on possession which is hostile to the true title owner. Iowa\u00a0\u2014 Johnson v. Kaster<\/em>, 637 N.W.2d 174 (Iowa 2001)<\/span>.<\/span><\/strong><\/p>\n

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.\u00a0\u2014 Mannillo v. Gorski,<\/em> 54 N.J. 378, 255 A.2d 258 (1969<\/span>).; N.Y.\u00a0\u2014 Reiter v. Landon Homes, Inc.<\/em>, 56 Misc. 2d 168, 538, 295 N.Y.S.2d 103 (2d Dep’t 1968)<\/span>.<\/span><\/strong><\/p>\n

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.\u00a0\u2014 Prestwood v. Hunt<\/em>, 285 Ala. 525, 234 So. 2d 545 (1970)<\/span>.<\/span><\/strong><\/p>\n

Establishment of title by adverse possession is based on theory that the owner has abandoned the land to the adverse possessor.<\/span> Fla.\u00a0\u2014 Downing v. Bird<\/em>, 100 So. 2d 57 (Fla. 1958)<\/span>.<\/span><\/strong><\/p>\n

Title<\/b><\/span><\/span>\u00a0to property by adverse possession may be acquired by the application of an equitable estoppel.<\/span> Fla.\u00a0\u2014 King. v. Carden<\/em>,, 237 So. 2d 26 (Fla. Dist. Ct. App. 1st Dist. 1970<\/span>.<\/span><\/strong><\/p>\n

The goal of the doctrine fo adverse possession is the final settlement of titles.<\/span> Ill.\u00a0\u2014 Klingel v. Kehrer<\/em>, 81 Ill. App. 3d 431, 36 Ill. Dec. 719, 401 N.E.2d 560 (5th Dist. 1980)<\/span>.; W.Va.\u00a0\u2014 Soman v. Murchpy Fabrication & Erection Co<\/em>., 160 W. Va. 84, 232 S.E.2d 524 (1977)<\/span>.;\u00a0Wyo.\u00a0\u2014 Big Horn County Com’rs v. Hinckley<\/em>, 593 P.2d 573 (Wyo. 1979)<\/span>.\u00a0<\/span><\/strong>[5]<\/span><\/p>\n

1.\u00a0<\/span>A method of acquisition of title to real property by possession for a statutory period under certain conditions. Lowery v. Garfield County<\/em>, 122 Mont. 571, 208 P.2d 478, 486<\/span>. <\/span><\/strong><\/p>\n

It has been described as the statutory method of acquiring title to land by limitation. Field v. Sosby<\/em>, Tex.Civ.App., 226 S.W.2d 484, 486<\/span>.<\/span><\/strong><\/p>\n

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<\/span>. <\/span><\/strong><\/p>\n

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.<\/span><\/strong><\/p>\n

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<\/span>; 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<\/span>.<\/span><\/strong><\/p>\n

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<\/span>.<\/span><\/strong><\/p>\n

See also Constructive adverse possession; Hostile; Possession (Hostile possession; Open possession); Notorious possession; Prescription; Tacking.<\/span><\/p>\n

adverse use<\/span> – Use without license or permission; an element necessary to acquire title or easement by prescription. Shuggars v. Brake<\/em>, 248 Md. 38, 234 A.2d 752<\/span>.<\/strong> [6]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0When courts look at adverse possession claims, they apply a four-factor test<\/em>, requiring the person\u2019s occupation<\/a> to be done in the following forms of\u00a0<\/span><\/strong>possession<\/a>\u00a0(the term\u00a0actual possession<\/em><\/a>\u00a0has been added below, as it helps to distinguish the term\u00a0exclusive possession<\/a><\/em>.)<\/span><\/span><\/strong><\/span><\/p>\n