Adverse possession states that under certain (stringent) conditions, you can take someone else’s property and make it your own. The idea is that if you aren’t moving it, you should lose it. The law prefers the efficient use of property. If the original owner is neglecting it, the interloper who increases the productivity of that land will be rewarded with title.
Like the other guides on my blog, this post is likely best applicable to those at national law school and/or taking the UBE. If you are focused on local law, keep an eye out for potential variances.
What do you need to gain title via adverse possession? There are five elements:
· Actual Possession: The adverse possessor must actually use the land. If the parcel in question is a farm for example, the adverse possessor could harvest it. Taking their morning walk across it probably would not cut it.
· Hostile: The adverse possessor must use the land without the true owner’s permission. The majority view is that the adverse possessor’s state of mind does not matter. For example, if unbeknownst to you, your backyard’s fence creeps five feet over to your neighborhood’s land, you can still gain title to that parcel so long as the other elements of adverse possession are satisfied. You cannot adversely possess property that you have permission to use. So, if the neighbor knocks on your door and says, “Hey, your new fence is on my property, but not to worry, you have permission to keep it there,” this element is not satisfied.
· Open and Notorious: The adverse possessor’s use of the property must be used in a way that would put the true owner on notice during the ordinary course of events or in the owner’s ordinary inspection of the property. This is the type of use the owner would make of the land. If you were the true owner, would you be sneaking around with a sleeping bag and only occupying the land at night? Probably not.
· Continuous: The adverse possessor needs to use the property continuously for the entirety of the statutory period. The statutory period starts ticking when the true owner could first bring suit to eject the adverse possessor. Most exam questions list the statutory period as anywhere from seven to twenty years. An adverse possessor can tack (or combine) their time in adverse possession of the land with their predecessor to reach the statutory requirement under two conditions. First, no time has passed between the end of the first adverse occupant’s possession and the beginning of the second adverse possessor’s occupancy. Second, there is privity. Privity just requires a non-hostile nexus such as a contract, deed, or will.
· Exclusive: The adverse possessor cannot share the property with the public or the true owner. If multiple people act together to adversely possess a parcel, they take title as tenants in common at the end of the statutory period.
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