Adverse Possession

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Adverse possession is a way of acquiring legal title to a property by occupying or using it for a long period of time, without the permission of the original owner. 

According to the theory of adverse possession, if a piece of property is neglected or abandoned for an extended period of time, the original owner forfeits their title to it, and if it is used consistently and openly by someone else, that person acquires a new right to keep it.

Adverse possession is not a type of theft or trespass. It is a legal principle that takes into account the realities of long-term ownership and usage of the property and works to avoid legal wrangling and litigation over dated or ambiguous titles. Moreover, adverse possession discourages the wasteful or inefficient use of land and promotes its productive and effective use.

How does adverse possession work?

The requirements for adverse possession vary from state to state, but generally, a person claiming adverse possession must prove that their possession of the property was:

• Actual: The person must physically occupy or use the property in some way, such as living in a house, building a fence, planting crops, etc.
• Open and notorious: The person must occupy or use the property in a visible and obvious way to anyone who sees it, and not try to hide or conceal their presence.
• Exclusive: The person must occupy or use the property alone or with their family or guests, and not share it with anyone else, especially the original owner.
• Adverse: The person must occupy or use the property without the permission or consent of the original owner, and against their interest or right.
• Continuous: The person must occupy or use the property without interruption for a certain period of time, as specified by the statute of limitations in each state.

According to the state and the type of property, the statute of limitations for adverse possession runs from 3 to 40 years. For instance, the statute of limitations for adverse possession in California is five years for improved land (land with houses or other structures on it) and ten years for unimproved land (land without buildings or structures on it). In New York, both improved and unimproved land are subject to a 10-year statute of limitations on adverse possession.

In some areas, a person claiming adverse possession must additionally demonstrate that they paid property taxes throughout their term of possession and that they have a deed or other document proving their ownership of the property, even if it is not legitimate or acknowledged by the original owner. This is referred to as the color of the title.

What are some examples of adverse possession?

Here are some hypothetical scenarios that illustrate how adverse possession can happen:

• Alice purchases a home with a sizable yard. She constructs a shed in a backyard corner without realizing that she has gone a few feet over Bob, her neighbor. Bob doesn't ever comment on or object to Alice's shed. In use by Alice for 15 years. Given that Alice complies with all state standards for adverse possession, she may assert adverse possession over the area of Bob's property where her shed is located.
• Charlie receives his grandfather's cottage in the woods as an inheritance. He hardly ever goes to the cabin or keeps it up. When he eventually decides to sell it, he learns that Dave has been residing there for 20 years. After discovering the cabin was unoccupied, David moved in and renovated it. Also, he annually paid taxes on it. Because Dave has complied with all statutory requirements for adverse possession, including paying taxes and obtaining color of title, he is entitled to claim adverse possession of Charlie's cabin.
• Frank owns the apartment complex where Eve leases a unit. She observes that Frank never utilizes the empty storage space adjacent to her apartment. Without notifying Frank, she makes the decision to use it as her own storage area. She secures the door with a lock and stores her possessions there for ten years. Due to Eve's failure to comply with all state standards for adverse possession, she cannot assert adverse possession over Frank's storage area. Because she was Frank's tenant and had his implied consent to use his property, her occupancy was not adverse.

What are some tips for avoiding or resolving adverse possession disputes?

If you are a property owner, you should:

• Understand your property's borders and periodically inspect them for any indications of encroachment or other people's occupation.
• Do not allow your property to get neglected or abandoned; instead, keep it up and use it frequently and clearly.
• Maintain your title paperwork in an accessible and current state, and pay your property's taxes.
• Talk to your neighbors, and settle any arguments or boundary issues as quickly as you can.
• Provide written authorization to anyone wishing to use your property for a brief period of time or for a specific reason.
• As soon as you become aware of any unlawful occupiers or users of your property, take legal action to reclaim it before the statute of limitations runs out.

If you are a property occupier or user, you should:

• Understand the history and legal status of the property you are using or inhabiting, as well as whether you have the owner's permission or not.
• Respect the owner's and the neighbors' rights and interests by not interfering with or bothering them.
• Get a deed or other paperwork that proves your ownership of the property, if possible, and pay the property's taxes.
• Resolve any boundary conflicts or difficulties as soon as you can by speaking with the property owner and the nearby neighbors.
• Get legal counsel if you wish to assert adverse possession over the property, and be ready to demonstrate that you have complied with all applicable state laws governing adverse possession.