Amazing Look at Adverse Possession

Modern Office

Adverse possession is highly tested on exams. It’s very common on midterms but it also springs up on final exams. Here’s a simple explanation.

Big Picture

Adverse possession is when you use the land someone else owns so much and for so long that you become owner. The idea is that it’s in the best interest of society that land be put to best and maximum use rather than merely lying waste and neglected.

Statutory Period

Here’s how it works. The amount of time it takes someone to assume a true owner’s property by adverse possession is called the statute of limitation. Depending on the jurisdiction it may be 10, 15 or 20 years. When or if the 10, 15 or 20-year mark is reached we say that the statute of limitation has tolled. Just an old school word for expired.

Step One

There are five elements that need to be satisfied within the statutory time limit in order for adverse possession to be satisfied. Hostile is the first of the five elements. Hostile doesn’t mean that you have to be mean or violent. It just means that you are using the property without the owner’s permission.

Step Two

The next element is open and notorious. It sounds like an FBI wanted suspect but it simply means that for the entire statutory time limit, or period, you can’t use the property secretly. Just like the true owner would use the land openly so should the adverse possessor. Courts require this because if after 15 or 20 years of someone else openly using property without the true owner noticing or caring enough to object then maybe it’s best for society that the adverse possessor own the property instead.

Step Three

Actual is the next element. All it means is that you have to actually enter, use and physically occupy the land for the entire period.

Step Four

Then there is the continuous element. The actual and continuous elements relate to one another. On one hand you have to occupy the land without a break and continuously for the statutory time limit. But this doesn’t mean you can never leave. It just means that for whatever the period of time required under the statute you must use the land similarly to how the original or true owner would. It could be a summerhouse or maybe the land is only farmed during certain seasons. So long as the land is used as it typically would for the entire period then the continuous requirement is met.

Step Five

The final element is that your use of the land be exclusive. Exclusive simply means that you can’t share the land with the true owner.

One More Thing: Tacking

There’s one more thing that comes up on exams a lot although it’s not one of the five elements. It’s called tacking. Tacking is when the statutory period is let’s say 20 years. Well, for 5 years your friend occupied the true owner’s land hostily, open and notoriously, actually, continuously and exclusively. After five years your friend sold the land to you. Since your friend doesn’t really own or have real title to the land we call that type of purchase the sale of the “color” of title. Now let’s say that for 15 years you use the owner’s land hostily, open and notoriously, actually, continuously and exclusively. Under the tacking rule, your 15 years and your friends 5 years would be added together to meet the statutory requirement of 20 years.

So that’s adverse possession! Now that you’ve got the big picture, read your cases, listen in lecture and get practice analyzing adverse possession with practice problems.