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Old 05-18-2008, 03:56 AM   #1
chicago
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Default Adverse Possession

In common law, adverse possession is the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time. The law of adverse possession is entirely statutory, arising out of a statutory limitation period or statute of limitations.


REQUIREMENTS FOR ADVERSE POSSESSION

Adverse possession requires three elements in regards to the possession of the property:
  1. physical (actual, visible, notorious, exclusive)
  2. mental (hostile)
  3. temporal (continuous)

In simple terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. Where the property is of a type ordinarily only occupied during certain times (such as a summer cottage), the adverse possessor may only need to have exclusive, open, hostile possession during those successive useful periods, for the required number of years.


EFFECT OF ADVERSE POSSESSION

An adverse possessor will be committing a trespass on the property that they have taken and the owner of the property could cause them to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that the action of trespass is brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the land owner to evict the adverse possessor depends on the jurisdiction.

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

In other jurisdictions, the adverse possessor acquires merely an equitable title: the land owner being a trustee of the property for them.

Adverse possession only extends to the property adversely possessed. If the original owner had a title to a greater area (or volume) of property, the adverse possessor does not obtain all of it.

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 their names 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 pre-requisite to certain benefits (including equity loans, or judicial standing as an abutter). However, even if such action is not taken, the title is legally theirs, 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.

Adverse possession does not typically work against property owned by a government agency. However, there will be a more complicated analysis if private property were taken by eminent domain, control given to a private corporation (such as a railroad), 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 that state 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, even though the Treaty of Beaufort (1787) explicitly specified that the river's islands belonged to Georgia.


ELEMENTS

In order that adverse possession ripen into legal title, nonpermissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the uses to which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by a preponderance of the evidence.

The elements of "adverse possession" are that possession of the real estate is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period.
  • Actual - You actually acted in the manner of an owner of the property.
  • Open & Notorious - You engage in acts of possession consistent with the property at issue in a manner which was capable of being seen. (This does not mean that you must have been observed in your acts of ownership but, had the actual owner or members of the public been in a position to see you, your acts must have been observeable). You need not use the property in a manner that exceeds that which would be expected of the actual owner - that is, it may be possible to claim adverse possession of a vacation property on the basis of use only during the vacation season, or to claim adverse possession of a vacant parcel of land by engaging in typical acts of maintenance for the parcel.
  • Exclusive - The adverse possessor does not occupy the land concurrent with the true owner or share possession in common with the public. One does not have to exclude others from the land in order to claim "exclusive" use, but during the statutory period the person claiming title by adverse possession must have been the only person to treat the land in the manner of an owner.
  • Hostile - Hostility exists where a person possesses the land of another intending to hold to a particular recognizable boundary regardless of the true boundary line. That is, possession is "hostile" to the title owner's interest in the property. If possession was not hostile, it may still be possible to advance a claim of ownership under a theory of "acquiescence". You cannot claim "adverse possession" if you are engaged in the permissive use of somebody else's land.
  • Under Cover of Claim or Right - Either when the person claiming the property makes the claim based upon constructive possession under color of title (e.g., there is an error in the legal description in their deed leading them to believe they own part of a neighboring property), or makes the claim based upon actual use and possession of the area of land at issue for the statutory period
  • Continuous & Uninterrupted - All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. It may be possible to claim adverse possession even if there is a transfer of ownership through the principle of "tacking" - for example, a former owner's twelve years of adverse possession can be "tacked" to the present owner's eight years, for a cumulative twenty years of adverse possession.
  • The Statutory Period - The statutory period, or "statute of limitations", is the amount of time the claimant must hold the land in order to successfully claim "adverse possession".


COMMON DEFENSES TO ADVERSE POSSESSION

While the following list is far from exhaustive, these defenses are very often brought in adverse possession actions:
  • Permissive Use - If the actual owner has granted the claimant permission to use the property, the claim of "adverse possession" cannot be deemed "hostile" and thus fails.
  • Public Lands - Government-owned land may be exempt from adverse possession.
  • Insufficient Acts - Although it is conceded that the claimant engaged in some use of the property, it is alleged that these acts were not sufficient to amount to acts suggesting a claim of ownership.
  • Non-Exclusive Use - Although it is conceded that the claimant engaged in some use of the property, it is alleged that others (usually the property owner) also used the property in a manner consistent with that of the landowner.
  • Insufficient Time - Even if various elements of adverse possession were met, it is alleged that the adverse possession did not last for the full statutory period, or that the adverse possession was interrupted by a period of non-use.
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Old 02-10-2011, 07:06 PM   #2
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Question Re: Adverse Possession

I have resided in the same house in Oregon since December of 1997, when the house was purchased by my mother with my children and myself alone in mind. It was and has been considered "hers" strictly in name only. Since I had my own growing business, I had every intention of "renting to own" from my mother, but soon after, I became disabled and unable to continue paying rent. My mother expressed her supreme dissatisfaction but did nothing about it.

During my 13 years here, I've done what I wanted with the property including changing the locks and not sharing the keys, installing/knocking down interior partitions and exterior sheds and fences, painting, re-leveling and repairing decks and siding, and keeping livestock, most often withOUT my mother's permission, or even her knowledge, as her input was addled and impractical due to chronic, acute alcoholism.

Mother never lived here or even spent the night, and she has not visited the property since 2005, nor has she sent a representative, which would appear to qualify my use of the property as "exclusive." I believe they would tell you themselves that they feel distinctly unwelcome here. I believe my possession and residence also qualify as "hostile" - for the first couple of years it was much more permissive, but since my disability in 2001, it has been tolerated, but just barely.

Concerning "an honest belief of actual ownership," at the time the house was purchased, my mother had a healthy retirement income, excellent insurance, a sizable inheritance from my grandmother and a nearly mortgage-free home and payment-free car. Additionally, she lived a very low-key, frugal life. Over the years, I have been increasingly shut out by my self-dealing sister and then accused of abandoning my mother. I was not informed until February 8, 2011 that my share of my mother's estate, as administered, will not cover the balance of the mortgage as I believed it would. That the first official report from the "trustee" sister angrily accuses me of living here rent free for 15 years and has demanded I rent/sell/buy IMMEDIATELY seems to support the "hostility" aspect of my claim, right?

(ORS 105.605 and 105.620) Title by adverse possession requires actual, open, notorious, exclusive, hostile and continuous possession of the property. Possession must commence with an honest belief of actual ownership of the property. Furthermore, this belief must continue throughout the vesting period, must have an objective basis, and must be reasonable under the circumstances. All elements require proof by clear and convincing evidence. (ORS 105.605 and 105.620)

WHETHER OR NOT YOU AGREE WITH THE SITUATION (I personally hate it but am desperately fighting homelessness). DO I HAVE A CLAIM FOR ADVERSE POSSESSION? If not, why not? If so, I file with the Circuit Court, correct?
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