An Overview of Adverse Possession
Adverse possession is the legal right to claim ownership of land under certain circumstances, even if that land is already owned by someone else. Its purpose is to encourage landowners to maintain or improve their property and to pick up the slack when they leave their land unattended.
Adverse possession is an ancient concept. The Romans had a similar doctrine for the ownership of land, that of usucaption (from Latin: usucapio , "to possess"). An individual claiming ownership would have to show that he or she had possessed the land over a certain number of years. The term "adverse possession" originated much later, in England. Adverse possession in Canada is based in common law, which has two elements: a require ment of occupation and a requirement of notice. In other words, the possessor must have both occupied the land and made it known to everyone – including the owner – that the possessor intended to own it. In most cases, the requisite years of possession for adverse possession is 10 years.
The Need for Actual Possession
A critical element to an adverse possession claim is the actual possession of the disputed property by the claimant. The claimant must physically use and occupy some portion of the land claimed as a matter of right. Typically, casual or sporadic uses of the land are not sufficient to show actual possession. However, the key point is that the claimant does not have constructive possession where boundaries have been established. In other words, a party must actually occupy land and use it as if he or she were the true owner. (A recent post on the possession element of a boundary line dispute provides a good example of how possession is an issue in land disputes.)
Actual possession means the claimant must be physically present on the land. And, the nature of the property will affect the claimant’s burden to actually possess it. For example, mere maintenance by a homeowner or a tenant as to his or her yard will not satisfy the requirement. On the other hand, it is not necessary that the adverse possessor continuously possess or occupy the property to the exclusion of anyone else to satisfy the requirement. For example, a vacation or summer home may be possessed only part of the year if the possession is exclusive. Or, there could be an area on a landlocked parcel that is used for hunting or other recreational uses not consistent with a permanent type of possession.
In 2013, the Illinois Appellate Court, held that entry into a landlocked parcel by a claimant once or twice a year as a game preserve met the actual possession burden for adverse possession where there was enjoyment and ownership of every part of the land. (See Lichtenberg v. Binas, 994 N.E.2d 711 (Ill. App. 2013).) Alternatively, in 1999, the Illinois Appellate Court denied an adverse possession claim involving a piece of Chicago property where a fence had been erected on the property and the adverse possessor painted and put up signs on the fence to this day. (See Bd. Trustees of Community College Dist. No. 508 v. E. Chicago Cmty. Cor., 726 N.E.2d 740 (Ill. App. 1999).) But, the claimant did not pollute, waste or destroy oil and gas or minerals on the tract or make any other use of the property that is inconsistent with the owner’s use.
Clearly, physical possession of the disputed land is a critical part of an adverse possession claim. Likewise, exclusive possession is also required to satisfy the adverse possession burden in most cases. In any event, the amount of use and its exclusivity are usually the key factors to determine if the actual possession requirement is met.
Proof of Open and Notorious Possession
To meet the requirement that your possession be "open and notorious," the use of the land must be visible to the public and to the property owner. For example, if you were living on the property, people would see that; the purpose is to provide notice to the property owner. The "open and notorious" requirement helps ensure that the true owner has a way of knowing what’s going on.
If the property owner can see what you’re doing, their response may be very different from the response of an absentee landowner. The adverse possessor who is seizing land from an absentee landowner may think they can get away with it.
An example of this might be a person who builds a fence close to the centerline of the road you own. You might rarely travel on the road. The fence is clearly to the centerline of the road; it is visible to the public and to your eyes.
Usually, claimants who are able to satisfy their state’s requirements for adverse possession must have exclusive use of the land they are claiming—and it must be adverse to the state’s claim as the true owner—to satisfy the requirements of open, notorious, actual use. If the property owner sees you trespassing, it does not matter if you believe you are entitled. Plus, if the property owner is able to see that you are actually using the property, using the land alongside yours to make improvements, he or she has a better chance of being able to evict you.
If you are not using the land continuously, and your possession is secretive—meaning the owner would have no way of knowing that you had been using the land—you will not be able to qualify for adverse possession.
Existence of Exclusive Possession
The element of exclusive possession is the requirement that a person claiming adverse possession must have actual and exclusive use and occupancy over the land, having dispossessed the true owner. This requirement of exclusivity is generally established by proving the claimant has occupied and utilized the land in such a manner that a right of possession may be inferred. In other words, the adverse possessor must be using the property outside of the watchful eye of the original owner. Typically, adverse possessor will erect his own building or other improvements on the land in order to get the assent of the courts to claim title.
Evidence of Continuous and Unbroken Possession
Continuous and uninterrupted possession of the property must be maintained for the full statutory period. Therefore, the adverse possessor cannot go back and forth on the disputed property, interrupting the period of continuous possession. The possession cannot be broken or interrupted by the deliverance of the disputed property by the adverse possessor to the true owner and resume again, or by an agreement between the adverse possessor and the true owner . Adverse possession requires continuous possession without interruption. A conveyance of land by the grantor, who is in possession claims no right to the land, so that the privity once existing is terminated, and the possession is thereby interrupted. If the grantor conveys land and reserves the right to use the land, the title then reverts back to the grantor, and the possession is again interrupted.
Claim to the Land must be Hostile
The final requirement of adverse possession is that the person claiming adverse possession must have claimed that he or she was the owner to the exclusion of all others. Normally this is not a question of actual notice, but a question of notice that someone is claiming ownership. Most cases state that if the true owner saw the unlawful possessor, he would have known not to try to take the land possessed by him. The proposition of claiming the land as one’s own "without consent" is often circular in nature. After all, if the true owner consented, there would be no need for an adverse possession claim, right? In that way, what the hostile requirement really means is that the true owner must be unaware of the unauthorized use of the property. It should go without saying that the incontrovertible point of the hostile requirement is not that the adverse possessor be hostile or aggressive; it is that the true owner did not consent to the use. The traditional definition of the adverse possession requires that the hostile requirement be met intentionally by the adverse possessor. In California, a case from 2002 held the hostile requirement could also be met without intent to claim title and merely by prescriptive use seriously; so serious that a "casual user could not keep a suitable remedy intact." (Jeanes v. Hillen (2002) 101 Cal.App.4th, 212, 215.) Many Courts seem to agree with this simplicity; prescriptive use is "sufficient….if it was trespass under a claim of right, or without any claim of right, or ‘hostile to the real owner’s title.’" (See Tacoma Eastern R.R. v. Adams (4th Cir. 1955) 219 F2d, 396, 401.) Some courts are more restrictive regarding the hostile requirement. Illinois and New York require malicious use by the adverse possessor, thus punishing the adverse possessor rather than rewarding the adverse possessor for a history of contact with the property. In regards to ease of meeting the hostile requirement for adverse possession, it is often said that it is the easiest of the five elements for adverse possession to meet. These days, courts rarely analyze the element at all. Years of repeated, continuing use of the property has established the requirement without analysis. There is no question the element has been met if the true owner has been aware of the adverse possessor’s use all along. While the true owner’s awareness of the use most likely wall save time and litigated issues, it does little to benefit the true owner. The purpose of the hostile requirement is to provide the true owner of the property notice of the claim. It is not difficult to see how the absence of notice helps the true owner once it is discovered the adverse possessor is long gone.
Legal Impediments and Defenses
Legal implications for the property owner and the adverse possessor are also of concern. Both have certain rights, and certain responsibilities. Adverse possession rights can be an especially useful tool for squatters who claim possession of real estate without the property owner’s consent. A property owner has the right to evict a trespasser and reclaim exclusive possession over their real property. Courts are reluctant to award possession of real property to a trespasser under a claim of adverse possession because to do so generally takes away one person’s land and transfers it to another. Courts prefer to ‘protect’ the legal title of the property even if the party in possession has better right to the property.
Adverse possession claims are seldom granted, especially for individuals who take actual possession before the 7-year statutory period expires. Adverse possession claims can be disputed, most often by denial of specific elements necessary for claim. Litigating adverse possession claims is very common for property owners who have been adversely possessed. Sometimes adverse possessors only claim AP when they are in need of something from the legal owner of the land. For example, an individual who needs a survey to determine boundaries.
The impact adverse possession claims have on real estate transactions can be disruptive. Property owners may not be aware a trespasser has adversely possessed the property. A property owner may buy or sell property unaware a squatter claims akin ownership for the property. For example , a closing might happen and the property deed recorded, yet the property owner has been adversely possessed for the land. If the property owner tries to exclude the adverse possessor, the claim or encumbrance on the land may need to be litigated in court which could result in significant expense to the new property owner.
Court cases involving adverse possession are often very old. Adverse possession statutes and laws date back many centuries, which means that courts have had time to issue rulings at frequent intervals. For example, the "tacking" required by some state laws has been defined and examined by courts since the early 1800s. There are very few elements or defenses to basic elements that are undefined by specific cases or circumstances. The exceptions to every common element can be very enlightening for understanding current case law.
For example, tacking can be permissive. Property owners should be aware of circumstances in which permission was given but rescinded quickly. Some court cases addressing permission have found in favor of the adverse possessor, even if permission was granted. All that is required is a showing of possession, and that the possession was intentional. Property owners should seek the help of qualified legal counsel if they are claiming adverse possession.