Adverse Possession Issues

Adverse possession is a principal of real estate law whereby a person can potentially gain the title of a property through the exclusive usage of the land over a period of time even if someone else has legal ownership over the property.  The time period of adverse possession varies depending on location but can be anywhere from a few short years to several decades.  Public entities are usually required to establish a longer period of possession than individuals.

This principal was originally created in order to protect the rights of a disseisor, one who has been using a property openly for a considerable amount of time, from a long-lost heir or former owners coming forward with legal claim to the property.  For example, if you have been using an abandoned property in the open for a verifiable set amount of time, you can claim adverse possession over the property in case the landowner tries to reclaim the land as his/her own.

There are many different elements of adverse possession issues that must be present for a transfer of title to take place that vary from state to state.  In general, the following elements must be present:

Actual Possession – Actual possession is when an individual has acted in the manner of an owner of the property.  For example, some states require that the adverse possessor pays taxes on the land which would count as an action of ownership.

Open and Notorious – All claims of adverse possession must be open and notorious in a way that was observable by the actual owner of the property if they were in a position to see you.  The use of the property must be in a manner that exceeds that which would be expected of the actual owner.

Exclusive Use – The adverse possessor must occupy the land exclusively.  In other words, the possessor cannot occupy the land or share possession with the owner or in common with the public.  During the statutory period, the adverse possessor must be the only one who treats the land as an owner.

Hostile Use – The land must be used by the adverse possessor in a manner that is “hostile” to the title owner’s interest in the property.  If the property is being used with permission or without hostility, then adverse possession cannot be claimed.

Continuous Use – All of the elements of adverse possession must be met at all times throughout the statutory period in order for a claim to be successful.

Cover of Claim or Right – The adverse possessor must claim the property based on constructive possession under color of title (where there may be an error in the legal description in the deed that lead a party to believe they own part of a property) or by making the claim based upon the actual possession and use of that area of the land during the statutory period.

Within Statutory Period – To protect landowners and title owners, there is a statutory period that varies based on location which means that adverse possessors must be at a property for a set amount of time before a claim can be made.  The period is designed to be long enough that any landowner should have reasonable time to file a lawsuit on a potential trespasser before adverse possession can be claimed.

As a landowner, by not disputing a person’s use of your land through a lawsuit, you may abandon your rights to the property.  If you have further questions about adverse possession as a landowner or potential disseisor, contact us today to learn more.  We look forward to working with you to find the best solution for your specific situation.

Adverse Possession Issues Resources

Adverse Possession Issues Attorneys

James Randall Davis

(Ph) (803) 359-2512

(Fa) (803) 359-7478

Ryan M. Wingard

(Ph) (803) 359-2512

(Fa) (803) 359-7478