Adverse Possession
What is the Adverse Possession?
A method of acquiring title to land by occupying it continuously, openly, and without permission for a statutory period, effectively transferring ownership from the record title holder to the possessor.
Definition
Adverse possession is a doctrine that allows a person who possesses another's land in a manner that meets certain statutory and common-law requirements for a continuous statutory period to acquire legal title to that land. The doctrine serves multiple policy purposes: it quiets title disputes, rewards productive use of land, punishes owners who sleep on their rights, and aligns legal title with the reality of long-standing possession.
To establish adverse possession, the claimant must demonstrate that possession was (1) actual and exclusive, (2) open and notorious, (3) adverse and hostile (without the owner's permission), (4) continuous and uninterrupted for the statutory period, and (5) under a claim of right or color of title (required in some jurisdictions). The statutory period varies significantly by jurisdiction, ranging from as short as five years to as long as twenty or more. Some jurisdictions also require the adverse possessor to pay property taxes during the statutory period.
The doctrine of 'tacking' allows successive adverse possessors who are in privity with one another to add their periods of possession together to satisfy the statutory period. The statute of limitations is tolled (paused) during periods of the true owner's disability, such as minority, imprisonment, or mental incapacity, but only if the disability existed at the time the adverse possession began. Adverse possession generally cannot run against the government. Once all elements are satisfied, title vests in the adverse possessor by operation of law, though a quiet title action is typically needed to confirm legal title.
Key Elements
- 1Actual and exclusive possession of the property
- 2Open and notorious possession (visible enough to put a reasonable owner on notice)
- 3Adverse and hostile possession (without the owner's permission)
- 4Continuous and uninterrupted possession for the statutory period
- 5Under claim of right or color of title (required in some jurisdictions)
- 6Payment of property taxes during the statutory period (required in some jurisdictions)
Landmark Cases
Van Valkenburgh v. Lutz
304 N.Y. 95 (1952)
Addressed the requirements of actual possession and claim of right, holding that the adverse possessor's use was insufficiently substantial to constitute adverse possession.
Mannillo v. Gorski
54 N.J. 378 (1969)
Held that an innocent encroachment could satisfy the hostile element of adverse possession and addressed the open and notorious requirement for minor boundary encroachments.
Howard v. Kunto
3 Wash. App. 393 (1970)
Established that seasonal or periodic use can satisfy the continuity requirement when it is consistent with normal use of the type of property, and confirmed the validity of tacking between successive owners in privity.
Nome 2000 v. Fagerstrom
799 P.2d 304 (Alaska 1990)
Clarified that the nature of acts constituting actual possession varies depending on the character and location of the property.
Exam Tips
- Run through each element systematically -- missing even one element defeats the claim entirely.
- Pay attention to the hostile/adverse element: some jurisdictions require subjective intent to claim ownership, while others use an objective test where the possessor's state of mind is irrelevant.
- Tacking requires privity (a reasonable connection) between successive possessors. Adverse possessors cannot tack with strangers.
- Remember that disabilities toll the statute only if they exist at the time adverse possession BEGINS -- subsequent disabilities do not extend the period.
Common Mistakes to Avoid
- Assuming that permission from the owner can later become adverse -- possession that begins with permission (e.g., a license) remains permissive unless there is a clear repudiation communicated to the owner.
- Forgetting that adverse possession generally cannot run against government-owned land.
- Confusing color of title (possessing under an invalid deed) with claim of right (claiming to be the owner regardless of documentation).
Memory Aid
OCEAN: Open and notorious, Continuous, Exclusive, Adverse/hostile, for the Necessary statutory period.