Acquisition by Adverse Possession

Statutes of Limitations

The rule of adverse possession is merely a corollary to the general concept of the statute of limitations. Statutes of limitations are laws enacted in all 50 states and under the federal system that limit the amount of time that a party has to bring a claim. For example, in many jurisdictions, tort actions that are based on negligence must be brought within 3 years from the date of the accrual of the cause of action (this is the date on which the event which is the basis for the lawsuit occurred). Actions that are brought after their periods of limitations have run must be dismissed by the court, no matter how meritorious their claims may be.

The doctrine of adverse possession works in a similar manner. Each jurisdiction decides how long a property owner has, after a wrongful possessor enters his or her property, to bring an action to evict the wrongful possessor. (Periods of adverse possession usually range from 5 to 21 years, depending on the jurisdiction.) If a wrongful possessor enters a property, and the true owner fails to take legal action against the wrongful possessor within the prescribed period of time, then the possessor actually gains title to the property. Once this happens, the possessor, though he or she had no legal right to enter the property, gains full and exclusive possession and ownership of the property in fee simple absolute. The original “true” owner’s right to the property is permanently extinguished. For example:

New York has a statute of limitations period of 10 years for real property ownership disputes. Donald owns an apartment in a Park Avenue condominium in New York City. In 1990, Madonna moves into the apartment without permission and she lives there continuously until 2003. Donald, who owns many other residences, does not find out about Madonna’s moving into his apartment until 2003. When he finally does find out about this, he immediately brings an ejectment action against Madonna. The court will dismiss Donald’s action. Madonna is now the owner of the apartment. Donald lost all his rights to the apartment by allowing the Statute of Limitations to run out before he filed the ejectment action against Madonna.

The basic reason behind the adverse possession doctrine is the same as the reason behind all statutes of limitations. That is: old claims are hard to prove, documents get lost, witnesses die and memories fade. If a claim would never expire, then a legitimate buyer of property may find herself having to defend against a claim that an action or event that happened 30 or 40 years ago should deprive her of the property that she possesses today. Since it is unfair to expect people to preserve evidence forever and to always anticipate that any action in the past could give rise to a claim today, the law puts a time limit on most types of claims. In addition, the “true” owner of the property is obviously quite negligent for allowing a lengthy period of limitations to expire before taking an action to protect his or her property. Therefore, adverse possession periods and statutes of limitations are not considered to be unfair to the original owner.

The Elements of Adverse Possession

It must be kept in mind that what constitutes “possession” of real property is often not as clear as what constitutes “possession” of personal property. With regard to personal property, the rules of adverse possession are simple. If a person simply holds an object without being sued by the true owner until the applicable statute of limitations runs out, the owner cannot sue to recover the item. However, because of the significance attached by the common law to the ownership of real property (recall that, centuries ago, ownership of real property was a status symbol, a sign of wealth and even sometimes a prerequisite to the right to vote), the law has developed strict rules that must be adhered to for an adverse possession to be effectively carried out. In other words, unless the adverse possessor meets these requirements, his or her adverse possession was ineffective. There are four required elements for an adverse possession to be effective:

1. the possessor must have actually entered the property and must have exclusive possession of the property;
2. the possession must be “open and notorious”;
3. the possession must be adverse to the rightful owner and under a claim of right; and
4. the possession must be “continuous” for the statutory period.

Element #1: Actual entry and Exclusive Possession:
For this element to be satisfied, the adverse possessor must enter and reside on, or use the land for the entire duration of the adverse possession period. In addition, the possessor must occupy the land to the exclusion of the true owner. Possession that is shared with the true owner is not “adverse” to the true owner, and is thus not adverse possession. The theory behind this element is that the “true” owner of the property cannot be expected to bring an action against a possessor who has not excluded him from the property. For example:

Jerry owns a two bedroom apartment in a condominium on the west side of Manhattan. Because he lives alone, he only uses one of the bedrooms. One day, Kramer moves into the second bedroom and continues to live in that bedroom for the entire period of adverse possession in New York. This is not considered to be adverse possession because Kramer did not occupy the apartment to Jerry’s exclusion. (Note, while Kramer does not acquire the entire apartment by adverse possession, he may have acquired the bedroom which he occupied to the exclusion of Jerry by adverse possession. We will discuss this in subsequent examples.)

However, the adverse possessor need not actually occupy the entire premises. If the possessor enters the property and excludes the owner from the property, he or she will be deemed to possess the entire property even if the adverse possessor only actually uses part of the property. For example:

Jerry owns a two bedroom apartment in a condominium on the west side of Manhattan. One day, while Jerry is sitting in a coffee shop, Kramer moves into Jerry’s apartment and changes the locks so that Jerry cannot move back in. He continues to live there for the entire adverse possession time period. However, he only uses one of the bedrooms during the entire period. In spite of this last fact, Kramer is considered to have possessed the entire apartment because he resided in the apartment and excluded the true owner from the entire apartment.

The “exclusive” possession element means that the adverse possessor must possess the property to the exclusion of the rightful owner. He or she may, however, possess the property together with another person. In that case, the two (or more) possessors will adversely possess the property together. If this adverse possession by multiple people succeeds, then all of the people who possessed the property will own the property as co-tenants. For example:

Jerry owns a two bedroom apartment in a condominium on the west side of Manhattan. One day, while Jerry is sitting in a coffee shop, Kramer and Elaine move into Jerry’s apartment and change the locks so that Jerry cannot move back in. They continue to live there for the entire adverse possession time period. In this case, Kramer and Elaine will gain ownership of the apartment as co-tenants.

It is important to note that an adverse possession need not necessarily be effective on an entire property. A person can successfully adversely possess a portion of the property as long as the possessor excludes the actual owner from that portion. In such a case, the adverse possession will succeed in transferring only the property that was actually possessed by the adverse possessor. For example:

Jerry owns a two bedroom apartment in a condominium on the west side of Manhattan. Because he lives alone, he only uses one of the bedrooms. One day, Kramer moves into the second bedroom, and he has a lock installed on the door to that second bedroom. He lives in that bedroom for the entire adverse possession period and, all the while, he does not allow Jerry to enter the bedroom in which he is living. This would be considered adverse possession, and Kramer would gain title to the second bedroom, while Jerry would keep title to the rest of the apartment.

Element #2: Open and Notorious Possession:
For the adverse possession to be effective, it must be done in a manner that is visible to everyone. In other words, the possession must be done in such a manner that the actual owner would notice the possession if he or she bothered to look.

1. Jane owns Cornacre, a cornfield in Iowa. Mary plants and harvests corn on one acre of Jane’s land. This is open and notorious possession because Jane would notice the possession if she took a tour of her land.
2. Jane owns Cornacre, a cornfield in Iowa. Mary secretly digs a cave beneath part of the field and lives in the cave for 25 years. She makes sure to emerge only after peeking out of her burrow, using a periscope system that she designed to avoid detection. This possession is not open and notorious and thus is not enough to cause the title to the cave to be transferred to Mary.

If the adverse possession is on property that would not generally be inspected by or whose occupation would not be obvious to the true owner, then the adverse possession is ineffective. Thus, to adversely possess subterranean property, such as part of a coal mining shaft or an oil well, it is often necessary to show that the true owner did, in fact, know of the possession. For example:

Fred owns a coal mine with several shafts and caves going in all directions. Barney moves into one of the shafts. He puts up a huge sign above ground, near the entrance to the mine, that says “Barney’s Place: Go down this cave and make your third right to get to Barney’s Place.” In this case, since Barney has taken steps to assure that the true owner will know of his adverse possession, his possession can be considered open and notorious.

If the adverse possessor abandons the land every time the true owner comes to check on the land, then the possession will not be considered to be adverse at all, because it will not be open and notorious. For example:

The Wicked Witch owns the Gingerbread House. However, she spends most of her time in Oz and she usually just leaves the Gingerbread House to fend for itself. While she is gone, Hansel moves into the Gingerbread House. However, whenever the Wicked Witch comes home to the Gingerbread House (which only happens once every few years), Hansel hides in the brick oven until the Wicked Witch leaves. This goes on for forty years. Hansel has not adversely possessed the Gingerbread house for even one day because his hiding from the Wicked Witch shows that his possession is not open and notorious. Incidentally, the possession is also void because it does not satisfy the third element, as it is not hostile nor under claim of right.

Element #3: Hostile and Under a Claim of Right:
This element requires that the possessor must enter and possess the property without the owner’s consent and that the possessor must possess the property with the intent of remaining on the property permanently. It does not require that the possessor actually claim that he or she has a legal right to possess the property. It is enough that the possessor intends to remain on the property in perpetuity.

The key ramifications of this rule are that:

1. A tenant cannot claim adverse possession against his or her landlord because, by definition, the lease allows that tenant to live on the premises. Therefore, the possession is not hostile. The same is true for co-tenants. Since each co-tenant has a right to possess the entire property, possession by a single tenant is not considered to be hostile.
2. An occupier cannot adversely possess property if he or she has permission from the "true owner" to occupy the property.
3. An adverse possession is ineffective if the possessor verbally (or otherwise) concedes the fact that the owner is the “real” owner of the property and that he or she is just the possessor. In such a case, the possession is not considered to be hostile. For example:

The adverse possession period in State X is 20 years. Owner owns Blackacre, a parcel of real estate in State X. Possessor moves onto Blackacre in 1990. In 2008, Owner tells Possessor that, unless he moves off Blackacre immediately, Owner will bring an ejectment action and have him thrown off the property. Possessor responds, “Okay, I’ll leave; just give me a few weeks to find an apartment.” Owner consents. However, two more years pass and Possessor is still living on the property. Finally, in 2011, Owner brings an ejectment action against Possessor, but Possessor claims that he has acquired title to Blackacre via adverse possession. In this case, Owner will win because, by virtue of the conversation in 2008, Possessor showed that he did not occupy the property under claim of right. Rather, he merely possessed the property at the mercy of, and with the permission of, Owner. Therefore, Possessor did not acquire title to Blackacre via adverse possession.

It is also important to note that the possession need not be with malicious intent, or even with the intent to deprive the owner of property, for an adverse possession to be valid. In fact, even if the possessor did not realize that he was committing an act of adverse possession, such a possession can still work to transfer title. For example:

Owen and Angela are neighbors. Angela builds a picket fence along what she believes to be the property boundary between her property and Owen’s property. The fence stays there for 25 years. During that time, both parties assume that the fence is the correct demarcation between the properties and both parties live in accordance with the border demarced by the fence. It turns out that Angela had mistakenly built the fence 5 feet into Owen’s property. In most jurisdictions, this would qualify as an adverse possession. Even though Angela did not know that the fence encroached into Owen’s property, the fact remains that her possession of the five foot wide space was open and notorious and was hostile to the ownership of Owen. Hostility of feeling or malice is not required.

Some states have changed this rather harsh rule and instead apply a more subjective test for adverse possession. In these jurisdictions, if a person occupies property in good faith and under the mistaken belief that he or she already owns the property, that does not constitute adverse possession. See Preble v. Maine Central Railroad, 27 A. 149 (Me. 1893).

Element #4: Continuous and Uninterrupted Possession:
The last element of an adverse possession is that the possessor must have uninterrupted possession of the land for the duration of the statutory period. Of course, this does not mean that the possessor must be on the land for 24 hours a day, seven days a week, 365 days a year. Rather, this element requires that the possessor occupy the land to the degree and with the amount of usage that the average owner would occupy the property.

Of course, the degree of possession that is considered to be continuous and uninterrupted will vary depending upon what the property is typically used for. If the property is used as a permanent residence, then the adverse possessor would have to live in the house as the average person would live in a permanent residence. If the house is a vacation house, then its occasional use at sporadic times during the year for the statutory period could be sufficient. For example:

Alberto owns a ski chalet in Vail, Colorado which is generally only used during winter vacations. Assume that the statutory adverse possession period in Colorado is ten years. Hubert uses the ski chalet for his mid-winter vacation for ten consecutive winters. Hubert can acquire the house through adverse possession because his use of the chalet during the winter for the entire statutory period is considered to be continuous use, even though he did not use the chalet all year round.

If the adverse possessor intentionally abandons the property for any period of time without the intent to return, the continuity of adverse possession is lost and the adverse possession time period clock will re-start from the beginning if he or she comes back and takes possession of the land again.

Tacking

With regard to the final element of continuous possession, an important issue concerns situations in which different possessors occupy the property for consecutive time periods and their total combined period of possession exceeds the adverse possession period for a continuous time period. In other words, can two separate possessors “tack” their possessions upon one another to complete an adverse possession?

The general rule applicable to this question is that adverse possessors can “tack” their periods of possession onto one another’s possession if, and only if, the transfer from the first possessor to the second possessor was made voluntarily. For example:

1. Omar owns Blueacre, which is located in the State of Ames. Ames has an adverse possession statutory period of 15 years. In 2000, Anthony moves onto Blueacre and possesses it to the exclusion of Omar. In 2006, Anthony transfers Blueacre to Barbara by a deed that conveys Blueacre to Barbara in fee simple absolute. Barbara possesses Blueacre until 2016, when Omar brings an ejectment action against her to recover Blueacre. Omar is too late. Since Blueacre was transferred voluntarily from Anthony to Barbara, their periods of possession are “tacked” onto each other. Therefore, Barbara has acquired title to Blueacre via adverse possession.
2. Omar owns Blueacre, which is located in the State of Ames. Ames has an adverse possession statutory period of 15 years. In 2000, Anthony moves onto Blueacre and possesses it to the exclusion of Omar. In 2006, Barbara moves onto Blueacre without the consent of Anthony or Omar. She then excludes Anthony and possesses Blueacre until 2016. Barbara will not acquire Blueacre in this way. Since she did not have Anthony’s permission to enter Blueacre, her period of possession does not tack onto Anthony’s period of possession. She would need to possess the property until 2021 to acquire title via adverse possession.

The rule regarding adverse possession against successive owners, however, is even simpler. The rule is that once an adverse possession begins to run against a land owner, it continues to run against other subsequent land owners as well. For example:

Omar owns Blueacre, which is located in the State of Ames. Ames has an adverse possession statutory period of 15 years. In 2000, Anthony moves onto Blueacre and possesses it to the exclusion of Omar. In 2006, Omar sells Blueacre to Barbara. Anthony’s possession will continue to run against Barbara. If, by 2015, Barbara has not ejected Anthony, he will have acquired title to Blueacre via adverse possession.