Adverse possession

"Squatter's rights" redirects here. For the film, see Squatter's Rights (film).

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Adverse possession is a process by which premises can change ownership. It is a common law concept concerning the title to real property (land and the fixed structures built upon it). By adverse possession, title to another's real property can be acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period. For example, squatter's rights are a specific form of adverse possession.

The circumstances in which adverse possession arises determine the type of title acquired by the disseisor (the one who obtains the title from the original owner), which may be fee simple title, mineral rights, or another interest in real property. Adverse possession's origins are based both in statutory actions and in common law precepts, so the details concerning adverse possession actions vary by jurisdiction. The required period of uninterrupted possession is governed by the statute of limitations. Other elements of adverse possession are judicial constructs.

History

At common law, where entitlement to possession of land was in dispute (originally only in what were known as real actions), the person claiming a right to possession was not allowed to allege that the land had come into his possession in the past (in older terminology that he had been "put into seisin") at a time before the reign of Henry I.^[1] The law recognized a cut off date going back into the past, before which date the law would not be interested. There was no requirement for a defendant to show any form of adverse possession.

As time went on, the date was moved by statute -- first to the reign of Henry II^[2], and then to the reign of Richard I.^[3] No further changes were made of this kind.

By the reign of Henry VIII the fact that there had been no changes to the cutoff date had become very inconvenient. A new approach was taken whereby the person claiming possession had to show possession of the land for a continuous period, a certain number of years (60, 50 or 30 depending on the kind of claim made) before the date of the claim.^[4] Later statutes have shortened the limitation period in most common law jurisdictions.

Purpose and moral basis

Adverse possession exists to cure potential or actual defects in real estate titles by putting a statute of limitations on possible litigation over ownership and possession.

Because of the doctrine of adverse possession, a landowner can be secure in title to his land. Otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. The doctrine of adverse possession prevents this.

This means the law may be used to reward a person who possesses the land of another for a requisite period of time. Failure of a landowner to exercise and defend his property rights for a certain period may result in the permanent loss of the landowner's interest in the property.

Requirements for adverse possession

The adverse party is called the disseisor, meaning one who dispossesses the true owner of the property. The disseisor must openly occupy the property exclusively, keeping out others, and use it as if it were his own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continual (although not necessarily continuous or constant) without challenge or permission from the lawful owner, for a fixed statutory period to acquire title. Where the property is of a type ordinarily occupied only during certain times (such as a summer cottage), the disseisor may need to have only exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.

Basic requirements for adverse possession

Adverse possession requires at a minimum five basic conditions being met to perfect the title of the disseisor. These are:

• Actual possession of the property – The disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession. In Cone v. West Virginia Pulp & Paper, the United States Court of Appeals for the Fourth Circuit held that Cone failed to establish actual possession by occasionally visiting the land and hunting on it, because his actions did not change the land from a wild and natural state. The actions of the disseisor must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements.

• Open and notorious use of the property – The disseisor's use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.

• Exclusive use of the property – The disseisor holds the land to the exclusion of the true owner. If, for example, the disseisor builds a barn on the owner's property, and the owner then uses the barn, the disseisor cannot claim exclusive use. (Note: There may be more than one adverse possessor, taking as tenants in common, so long as the other elements are met.)

• Hostile or adverse use of the property – The disseisor entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile. The disseisor's motivations may be viewed by the court in several ways: Objective view—used without true owner's permission and inconsistent with true owner's rights. Bad faith or intentional trespass view—used with the adverse possessor's subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility). Good faith view—a few courts have required that the party mistakenly believed that it is his land. All views require that the disseisor openly claim the land against all possible claims.

• Continuous use of the property – The disseisor must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor's time on the land, not how long true owner has been dispossessed of it. Occasional activity on the land with long gaps in activity fail the test of continuous possession. Courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal action, and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of the disseisor's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.

Specific requirements for adverse possession

A court may require some combination of the following as elements of the basic requirements for adverse possession listed above. Which of these applies varies by jurisdiction and may be a result of interpreting common law or of statute.

• Claim of title or claim of right. The Supreme Court of the United States has ruled that the mere intent to take the land as one's own constitutes "claim of right."^{[citation needed]} Other cases have determined that a claim of right exists if the person believes he has rightful claim to the property, even if that belief is mistaken.^{[citation needed]} A negative example would be a timber thief who sneaks onto a property, cuts timber not visible from the road, and hauls the logs away at night. His actions, though they demonstrate actual possession, also demonstrate knowledge of guilt, as opposed to claim of right.

• Good faith (in a minority of states) or bad faith (sometimes called the "Maine Rule" although it is now abolished in Maine)^{[citation needed]}

• Improvement, cultivation, or enclosure ^[5]

• Payment of property taxes. This may be required by statute, such as in California ^[6], or just a contributing element to a court's determination of possession. Both payment by the disseisor and by the true owner are relevant.

• A legal document that appears (incorrectly) to give the disseisor title. ^[7]

• Dispossession not under force of arms. Dispossession by armed invasion does not establish a claim of adverse possession against the true owner.^{[citation needed]}

Effect of adverse possession

A disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession.

In some jurisdictions (such as England and Wales), the title of the landowner will be automatically extinguished once the relevant limitation period has passed. This process now applies only to unregistered land.

In New York, to acquire property by adverse possession, all that is required is a showing that the possession constitutes an actual invasion of or infringement upon the owner’s rights. ^[8] In other jurisdictions, the disseisor acquires merely an equitable title; the landowner is considered to be a trustee of the property for the disseisor.

Adverse possession extends only to the property actually possessed. If the original owner had a title to a greater area (or volume) of property, the disseisor does not obtain all of it. The exception to this is when the disseisor enters the land under a color of title to an entire parcel, his continuous and actual possession of a small part of that parcel will perfect his title to the entire parcel defined in his color of title. Thus a disseisor need not build a dwelling on, or farm on, every portion of a large tract in order to prove possession, as long as his title does correctly describe the entire parcel.

In some jurisdictions, a person who has successfully obtained title to property by adverse possession may (optionally) bring an action in land court to "quiet title" of record in his name on some or all of the former owner's property. Such action will make it simpler to convey the interest to others in a definitive manner, and also serves as notice that there is a new owner of record, which may be a prerequisite to benefits such as equity loans or judicial standing as an abutter. Even if such action is not taken, the title is legally considered to belong to the new titleholder, with most of the benefits and duties, including paying property taxes to avoid losing title to the tax collector. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another. (Many jurisdictions have accepted tax payment for the same parcel from two different parties without raising an objection or notifying either party that the other had also paid.)

Adverse possession does not typically work against property owned by the public.

The process of adverse possession would require a thorough analysis if private property is taken by eminent domain, after which control is given to a private corporation (such as a railroad), and then abandoned.

Where land is registered under a Torrens title registration system or similar, special rules apply. It may be that the land cannot be affected by adverse possession (as was the case in England and Wales from 1875 to 1926), or that special rules apply.

Adverse possession may also apply to territorial rights. In the United States, Georgia lost an island in the Savannah River to South Carolina, when South Carolina used fill from dredging to attach the island to its own shore. Since Georgia knew of this yet did nothing about it, the U.S. Supreme Court (which has original jurisdiction in such matters) granted this land to South Carolina, although the Treaty of Beaufort (1787) explicitly specified that the river's islands belonged to Georgia.^[9]

England and Wales

Main article: Land Registration Act 2002#Adverse possession

In England and Wales, adverse possession has been governed by the Limitation Act 1980, the Land Registration Act 1925 and the Land Registration Act 2002. Different rules are in place for the limitation periods of adverse possession in unregistered land^[10] and registered land.^[11]

For unregistered land, the Limitation Act of 1980 states that a squatter must remain in adverse possession for 12 years,^[12] at which point the paper owner's title to the land is extinguished.

For registered land, adverse possession claims completed before 13 October 2003 (the date the 2002 Act came into force)^[13] are governed by section 75(1) and 75(2) of the Land Registration Act of 1925. The limitation period remains the same (12 years) but instead of the original owner's title to the land being extinguished, the original owner holds the land on trust for the adverse possessor.^[14] The adverse possessor can then apply to be the new registered proprietor of the land.^[15]

The position of a registered landowner was significantly improved by the Land Registration Act of 2002. Where land is registered, the adverse possessor may apply to be registered as owner after 10 years^[16] of adverse possession and the Land Registry must give notice to the true owner of this application.^[17] This gives the landowner a statutory period of time [65 business days] to object to the adverse possession, and if they do so the application fails. Otherwise, the squatter becomes the registered properietor according to the land registry. If the true owner is unable to evict the squatter in the two years following the first application, the squatter can apply again after this period and be successful despite the opposition of the owner. The process effectively prevents the removal of a landowner's right to property without his knowledge, while ensuring squatters have a fair way exercising their rights.

Where a tenant adversely possesses land, there is a presumption that he is doing so in a way that will benefit his landlord at the end of his term. If the land does not belong to his landlord, the land will become part of both the tenancy and the reversion. If the land does belong to his landlord, it would seem that it will be gained by the tenant but only for the period of his term.^[18]

Squatter's rights

Most cases of adverse possession deal with boundary line disputes between two parties who hold clear title to their property. The term "squatter's rights" has no actual legal meaning, but is generally used to refer to a specific form of adverse possession where the disseisor holds no title to any properties adjoining the property under dispute. In most jurisdictions of the United States, few squatters can meet the legal requirements for adverse possession.

If the squatter abandons the property for a period, or if the rightful owner effectively removes the squatter's access even temporarily during the statutory period, or gives his permission, the "clock" usually stops.^{[citation needed]} For example, if the required period in a given jurisdiction is twenty years and the squatter is removed after only 15 years, the squatter loses the benefit of that 15-year possession (i.e., the clock is reset at zero). If that squatter later retakes possession of the property, that squatter must, to acquire title, remain on the property for a full 20 years after the date on which the squatter retook possession. In this example, the squatter would have held the property for a total of 35 years (the original 15 years plus the later 20 years) to acquire title.

Depending on the jurisdiction, one squatter may or may not pass along continuous possession to another squatter, known as "tacking", until the adverse possession period is complete. Tacking is valid only if the conveyance of the property from one adverse possesser to another is founded upon a written document (usually an erroneous deed), indicating "color of title." This concept is known as privity, a requirement for tacking under some statutes. If tacking requires privity in the jurisdiction, a squatter claiming adverse possession without a foundation on a written document (claim of right) may not tack previous periods of adverse possession onto his own for purposes of running out the statutory period.^[19] A lawful owner may also restart the clock at zero by giving temporary permission for the occupation of the property, thus defeating the necessary "continuous and hostile" element.^{[citation needed]} Evidence that a squatter paid rent to the owner would defeat adverse possession for that period.

Comparison to homesteading

Adverse possession is in some ways similar to homesteading. Like the disseisor, the homesteader may gain title to property by using the land and fulfilling certain other conditions. In homesteading, however, the possession of the property is not hostile; the land is either considered to have no legal owner or is owned by the government. The government allows the homesteader to use the land with the expectation that the homesteader who fulfills the requirements necessary for the homestead will gain title to the property.

The principles of homesteading and squatter's rights embody the most basic concept of property and ownership, which can be summarized by the adage "possession is nine-tenths of the law," meaning the person who uses the property effectively owns it. Likewise, the adage, "use it or lose it," applies. The principles of homesteading and squatter's rights predate formal property laws; to a large degree, modern property law formalizes and expands these simple ideas.

The principle of homesteading is that if no one is using or possessing property, the first person to claim it and use it consistently over a specified period owns the property. Squatter's rights embodies the idea that if one property owner neglects property and fails to use it, and a second person starts to tend and use the property, then after a certain period the first person's claim to the property is lost and ownership transfers to the second person, who is actually using the property.

The legal principle of homesteading, then, is a formalization of the homestead principle in the same way that the right of adverse possession is a formalization of the pre-existing principle of squatter's rights.

The essential ideas behind the principles of homesteading and squatter's rights hold generally for any type of item or property of which ownership can be asserted by simple use or possession. In modern law, homesteading and the right of adverse possession refer exclusively to real property. In the realm of personal property, the same impulse is summarized by the adage "finders/keepers" and is formalized by laws and conventions concerning abandoned property.

Copyrights

Some legal scholars have proposed to extend the concept of adverse possession to intellectual property law, in particular to reconcile intellectual property and antitrust law^[20] or to unify copyright law and property law.^[21]

Adverse possession of easements

Adverse possession grants only those rights in the disseized property that are 'taken' by the disseisor. For example, a disseisor might choose to take an easement rather than the entire fee title to the property. In this manner, it is possible to disseize an easement, under the legal doctrine of prescription. This must also be done openly but need not be exclusive. Prescription is governed by different statutory and common law time limits to adverse possession. It is common practice in cities such as New York, where builders often leave sidewalk space or plazas in front of their buildings to meet zoning requirements, to close public areas they own periodically to prevent the creation of a permanent easement that would cloud their exclusive property rights.

If a property owner interferes with an easement upon his property in a manner that satisfies the requirements for adverse prescription (e.g. locking the gates to a commonly used area, and nobody does anything about it), he will successfully extinguish the easement. This is another reason to quiet title after a successful adverse possession or adverse prescription: it clarifies the record of who should take action to preserve the adverse title or easement while evidence is still fresh.

For example, given a deeded easement to use someone else's driveway to reach a garage, if a fence or permanently locked gate prevents the use, nothing is done to remove and circumvent the obstacle, and the statutory period expires, then the easement ceases to have any legal force, although the deed held by the fee-simple owner stated that the owner's interest was subject to the easement.

Strictly speaking, prescription works in a different way to adverse possession. Adverse possession is concerned with the extinction of the title of the original owner by a rule of limitation of actions. Prescription, on the other hand, is concerned with acquiring a right that did not previously exist.

Non-common law jurisdictions

Some non-common law jurisdictions have laws similar to adverse possession. For example, Louisiana has a legal doctrine called acquisitive prescription, which is derived from French law.

In Roman law, usucapio laws allowed someone who was in possession of a good without title to become the lawful proprietor if the original owner didn't show up after some time (one or two years), unless the good was obtained illegally (by theft or force). Stemming from Roman law, adverse possession is recognized for instance in Romanian property law which establishes two time periods for the acquisition of property: 30 years and 10–20 years depending on the bona fidae of the possessor and the location of the parties involved.

See also

• List of real estate topics
• Homelessness
• Easement for related adverse rights
  • Rights of way in England and Wales
• Escheat
• Squatting
• Usucaption
• Usufruct
• Property law
• Property rights
• Lien
• Popular sovereignty
• Preemption Act of 1841
• Revised statute 2477
• Deed
• Title (property)

References

1. ^ See Bevil's Case 10 Co. Rep.
2. ^ By the Statute of Merton, 20 H. 3
3. ^ Statute of Westminster I, 3 Edw 1 c. 29 listed in the chronological table of statutes as the Limitation of Prescription Act 1275. The situation was more complicated, the reign of Richard I applying only to Writs of Right.
4. ^ 32 H. 8 c.2 (Limitation of Prescription 1540)
5. ^ California Code of Civil Procedure Section 323, 325
6. ^ California Code of Civil Procedure Section 325
7. ^ California Code of Civil Procedure Section 323
8. ^ Acquiring Property By Adverse Possession (Peter Moulinos, Esq.)[1]
9. ^ ??Georgia v. South Carolina, 497 U.S. 376 (1990)??
10. ^ Sections 15 and 17 Limitation Act 1980
11. ^ Section 75 Land Registration Act 1925 or Schedule 6 Land Registration Act 2002, depending on when the limitation period is completed
12. ^ Section 15(1) Limitation Act 1980
13. ^ Section 1 The Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003)
14. ^ Section 75(1) Land Registration Act 1925
15. ^ Section 75(2) Land Registration Act 1925
16. ^ Schedule 6 Paragraph 1 Land Registration Act 2002
17. ^ Schedule 6 Paragraph 2 Land Registration Act 2002
18. ^ Smirk v Lyndale Developments Ltd [1974] 3 WLR 91
19. ^ Dukeminier et al. Property (6th Ed). 140.
20. ^ Constance E. Bagley and Gavin Clarkson, "Adverse Possession for Intellectual Property: Adapting an Ancient Concept to Resolve Conflicts between Antitrust and Intellectual Property Laws in the Information Age" Harvard Journal of Law & Technology 16:2 (Spring 2003) full text
21. ^ Michael James Arrett, "Adverse Possession of Copyright: A Proposal to Complete Copyright's Unification with Property Law", Journal of Corporation Law 31:1 (October 2005) abstract; full text (pay)