Adverse Possession - Introduction

By common law or statute, most states recognize ownership rights in one who possesses property as if they were the owner for a requisite period of time.  This is the law of adverse possession.

The requirements for a claimant to establish ownership through adverse possession vary considerably among jurisdictions, but in general a possessor must show that her possession meets all or some of the following five elements: (1) the possession must be actual, (2) the possession must be open and notorious, (3) it must be exclusive, (4) it must be continuous throughout a statute of limitations period, and (5) it must  be adverse or hostile.

Keep in mind that in general, each of these requirements is aimed at the same thing: that the possessor act as if they are the true owner for a long enough period of time.  But let’s take each requirement in turn:

First, the possessor must take actual possession of the land in dispute.  This requires that the possessor enter and take possession of the property in the same manner a true owner would.  The acts amounting to actual possession depend on the nature of the property. Possession can be shown by living in a home, farming a farm, operating a small business such as a restaurant or store, etc. 

Second, possession must be open and notorious, which requires that the possession is as visible and obvious as would be a true owner’s.  The idea here is simple: if the true owner was paying attention, as we would expect, she would know the possessor was in possession of the land.

Third, possession must be exclusive, meaning the possession must not be shared with the true owner or the public, other than as a true owner would share possession.  The adverse possessor cannot be one of a hundreds who use the property on an equal basis; however, possession need not be so exclusive that the adverse possessor cannot invite friends over.  Remember always to ask yourself: how would a normal true owner act?

Fourth, possession must be continuous throughout a statutory limitations period.  Again, though, note that possession need only be as continuous as we would expect with regard to a true owner given the property’s nature, character, and location.  

Fifth, possession must be adverse and hostile.  “Adverse and hostile” does not mean threats and bloodshed.  It means one of two things, dependent entirely upon the jurisdiction.  In most jurisdictions, “adverse and hostile” refers to the character of the possession with regard to the true owner’s rights.  If the character of my possession of your property is incompatible with the notion that you have the right to possess the property, that is adverse and hostile.  For example, if you give me permission to possess the property, my possession is not adverse and hostile.  On the other hand, if I change the locks, or put up a fence, or put up a ‘no trespassing’ sign, all of those acts are adverse and hostile to the idea that anyone else has rights in the property.  In a minority of jurisdictions, the adverse and hostile element can be satisfied only if the adverse possessor truly believes they have the right to possess the property in question.  For example, a mistake in a deed or a survey may have led the possessor to believe the property in question in theirs. This version of "adverse" is sometimes referred to as "claim of right." States are not consistent in defining "claim of right". In some states, claim of right is limited it to innocent trespassers, i.e. those believing they are not trespassing.

All states impose a statute of limitations for recovering possession of property from an adverse possessor.  If all of the jurisdiction’s requirements for adverse possession have been satisfied for a sufficient period of time — usually between 10 and 20 years — then the true owner is barred from bringing a trespass claim against the adverse possessor, and the adverse possessor becomes the true owner of the property.

Discussion questions:  1) DeSoto argues that adverse possession or "preemption" played an important role in the economic development of the United States. What is his argument, and do you agree? 2) what values support granting title by adverse possession to an innocent trespasser? to an intentional trespasser?