Concepts in Property Law: Adverse Possession

One of the most controversial areas of property law is the idea of Adverse Possession. In its most basic form, adverse possession is a legal principle under which a person who does not have legal title to a piece of property, usually land (real property), acquires legal ownership based on continuous possession or occupation of the land without the permission of its legal owner.

In general, a property owner has the right to recover possession of their property from unauthorized possessors through legal action such as ejectment. However, courts have ruled that when someone occupies a piece of property without permission and the property’s owner does not exercise their right to recover their property for a significant period of time, not only is the original owner prevented from exerciseng their right to exclude, but an entirely new title to the property springs up in the adverse possessor. In effect, the adverse possessor becomes the property’s legal and rightful owner.

Over time, legislatures have created statutes of limitations that specify the length of time that owners have to recover possession of their property from adverse possessors. In the US, these time limits vary widely between individual states, ranging from as low as seven years (in states such as Arkansas and Utah) to as high as 30-60 years (in states such as Louisiana and New Jersey). Although the elements of an adverse possession action are different in every jurisdiction, a person claiming adverse possession is usually required to prove non-permissive use of the property that is actual, open and notorious, exclusive, adverse and continuous for the statutory period.

Personal property, usually known as “chattels,” may also be adversely possessed, but owing to the differences between real property and personal property, the rules governing such claims are rather more stringent, and favor the legal owner rather than the adverse possessor. Claims for adverse possession of chattel often involve works of art or historical documents.

Here are the main elements that are required for adverse possession of real property:

Actual possession: The claimant must physically use the land in the same manner that a reasonable owner would, given its character, location, and nature.
Exclusive possession: The claimant’s possession cannot be shared with the owner or with the public in general.
Open and notorious possession: The claimant’s possession must be visible and obvious so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim.
“Adverse and hostile” possession (some states also require “claim of right”): This element is complex. All states agree that possession authorized by the owner does not meet this requirement. Beyond this point, states differ. Some find the element is met if the claimant believes in good faith that he owns the land. In most states, the claimant’s state of mind is irrelevant. A third view requires bad faith, that is, the claimant must intend to take the title from the owner.
Continuous possession (frequency of conduct): The claimant’s possession must be as continuous as a reasonable owners possession would be, given the character, location, and nature of the land.