Adverse Property Possession Explained

Posted by CourthouseDirect.com Team - 13 September, 2013

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adverse property possessionAlthough it might seem contrary to everyday landowners' sensibilities, it's possible to gain ownership of a parcel of land without inheriting or purchasing it. The common law doctrine of adverse property possession makes some provision for this form of property ownership. While adverse property possession is far from the most common means of securing workable property rights, the doctrine is invoked with surprising frequency. Landowners and prospective landowners would do well to understand the circumstances under which this peculiar code may come into play.



Adverse Property Possession Defined

Adverse possession is a process by which an individual who lacks a formal ownership claim to a real estate parcel may secure a working title interest in it. In order to obtain his or her title interest, the owner-to-be must retain possession of the parcel for a given period of time and satisfy a number of common law conditions. These conditions may vary from jurisdiction to jurisdiction. Some form of legal action is usually required to codify adverse possession and secure a title transfer.

Typical Common Law Requirements

An individual who wishes to secure title under the principle of adverse property possession must adhere to a number of important guidelines. Further, he or she must be prepared to defend these actions in court. In the best case, the individual may only need to visit the local assessor's office to secure title. However, individuals who claim adverse possession often become the targets of legal cases brought by disgruntled property owners.

For an adverse possession claim to hold up in court, the claimant's occupancy must meet the following criteria:

  • Uninterrupted for at least seven years and probably as long as 20 years
  • Obvious to the property's owner and general observers
  • Actively structured in a manner that gives the owner legal cause to take anti-trespassing measures
  • Lacks evidence of stated permission from the affected landowner
  • Un-shared with other squatters or owners

In other words, the landowner in question must know about the "adverse occupant" and fail to give his or her consent to such occupancy for the entire duration of the statutes of limitation.

How It Can Cause Problems

The likelihood that an individual who claims adverse possession will face a protracted legal battle increases in the event that he or she makes a claim against a private landowner who actively manages his or her property. On the other hand, an individual who "squats" on a given parcel of long-disused timber land with an unclear chain of ownership may simply need to wait for the "waiting period" to expire and visit his or her assessor's office. Most adverse possession disagreements arise from misunderstandings between hands-off or absentee property owners and their farming, ranching or squatting "tenants."

Defending Against Adverse Possession

Landowners use a number of tactics to defend against adverse possession claims. Most commonly, aggrieved property owners will argue that they explicitly gave claimants permission to use or occupy a portion of their land in some fashion. This removes "hostile" claims from consideration. In addition, publicly owned lands tend to be immune from adverse possession claims. Other defenses include:

  • Insufficient acts of ownership
  • Non-exclusive occupancy or disposal
  • Statutes of limitation violations

It's worth noting that landowners who carry a defective "title in color" are far more susceptible to adverse possession claims than landowners who possess defect-free titles. Landowners who wish to prevent adverse possession would do well to perform periodic title searches or take other steps to ensure the quality of their titles.

Takeaways

While it's not exactly easy to secure property rights through adverse possession, it has been done many times in the past. Landowners who wish to protect themselves from unexpected losses of property rights should periodically review this legal code and keep abreast of potential changes in spirit, substance or interpretation. Prospective landowners and squatters who wish to use adverse possession to their advantage should do the same.

* Image courtesy of FreeDigitalPhotos.net

Topics: Real Estate


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