Few areas of law retain so many of the quirks from the law the American colonists brought over as the law of real property. Property law can be traced back hundreds of years, and many aspects of the law have changed little over the years. The doctrine of “adverse possession” is one of those quirks; it reflects an attempt to balance two often opposing forces which have most influenced property law through the years: the desire to protect the interests of the current landowner, and the desire to ensure that land remains productive even if the current owner does not keep it so.
By now you are asking yourself the same question that is murmured in hushed tones in the back of all first year law school real property classes: “Why do I need to know any of this?” The answer is simple: If you are not careful someone might end up owning your land simply by using it! Luckily, it is not quite that simple, but still something property owners should be aware of.
Your neighbor can gain legal ownership of your land by adverse possession if he or she occupies your land in a manner that is actual, open and notorious, hostile, exclusive and continuous for 21 years. While the law of adverse possession gives each of these terms unique meanings, those meanings can be explained easily:
1. Actual: This simply means that another person is physically occupying your land in some manner. This includes not only a permanent occupation, such as building a house, but also regular use of your land. If the individual uses your land in a way that meets all the factors, the law may not give them full ownership, but instead may give them an easement, which is a right to use your land. For example, your neighbor may gain an easement over your property for rainwater runoff if they dig a channel for runoff across your property without your permission and use it for 21 years.
2. Open and Notorious: This means that the manner in which an individual is occupying your land is such that it would be noticed upon an inspection. It would be “open and notorious” if someone builds a fence or other structure on your property but it would not be “open and notorious” if a neighboring owner dug a hidden tunnel under your property.
3. Hostile: This does not mean that someone violently takes the property or has any ill will towards you, instead it means that the use of the property is not with your permission and is contrary to your rights as owner. For example, if you give your neighbor permission to build a fence on your side of the property line, he could not gain that property by adverse possession because his use is not “hostile”.
4. Exclusive: This means that the owner and the individual occupying the land do not physically share the disputed area.
5. Continuous: All of the above elements must be present for a full 21 years before the person occupying your land can gain any ownership interest in the land. You may think because you have owned the property for less than 21 years that you have nothing to worry about. Unfortunately, that is not the case. If the unwanted guest was occupying the land prior to your acquisition and the above elements were present during the previous owner’s time, it will also count against you. Further, it need not even be the same person occupying the land during the full 21 years. If all the elements are present, and the first person occupying the land transfers the land to another, the time of both the current and previous occupiers are added together and go to making the 21 years. This is called “tacking”.
You have heard the bad news, now for the good news. It is relatively easy to protect your land. What can you do? First, knowing about adverse possession is half the battle. Second, inspect your property! This may not really be an issue for the suburban communities in our area, but if you are holding land for investment, or have a vacation home in a rural area, it is important that someone else is not occupying or using the land. You should look not only for the obvious such as structures and people, but also the less obvious like rainwater runoff ditches, well used trails, or evidence of regular removal of firewood or trees. Third, if you find someone or something in your inspection, inform the transgressor that he or she is trespassing (if you feel it is safe to do so), and if they do not quit possession of the property immediately and for good, legal action must be taken to protect your rights.
By now you are asking yourself the same question that is murmured in hushed tones in the back of all first year law school real property classes: “Why do I need to know any of this?” The answer is simple: If you are not careful someone might end up owning your land simply by using it! Luckily, it is not quite that simple, but still something property owners should be aware of.
Your neighbor can gain legal ownership of your land by adverse possession if he or she occupies your land in a manner that is actual, open and notorious, hostile, exclusive and continuous for 21 years. While the law of adverse possession gives each of these terms unique meanings, those meanings can be explained easily:
1. Actual: This simply means that another person is physically occupying your land in some manner. This includes not only a permanent occupation, such as building a house, but also regular use of your land. If the individual uses your land in a way that meets all the factors, the law may not give them full ownership, but instead may give them an easement, which is a right to use your land. For example, your neighbor may gain an easement over your property for rainwater runoff if they dig a channel for runoff across your property without your permission and use it for 21 years.
2. Open and Notorious: This means that the manner in which an individual is occupying your land is such that it would be noticed upon an inspection. It would be “open and notorious” if someone builds a fence or other structure on your property but it would not be “open and notorious” if a neighboring owner dug a hidden tunnel under your property.
3. Hostile: This does not mean that someone violently takes the property or has any ill will towards you, instead it means that the use of the property is not with your permission and is contrary to your rights as owner. For example, if you give your neighbor permission to build a fence on your side of the property line, he could not gain that property by adverse possession because his use is not “hostile”.
4. Exclusive: This means that the owner and the individual occupying the land do not physically share the disputed area.
5. Continuous: All of the above elements must be present for a full 21 years before the person occupying your land can gain any ownership interest in the land. You may think because you have owned the property for less than 21 years that you have nothing to worry about. Unfortunately, that is not the case. If the unwanted guest was occupying the land prior to your acquisition and the above elements were present during the previous owner’s time, it will also count against you. Further, it need not even be the same person occupying the land during the full 21 years. If all the elements are present, and the first person occupying the land transfers the land to another, the time of both the current and previous occupiers are added together and go to making the 21 years. This is called “tacking”.
You have heard the bad news, now for the good news. It is relatively easy to protect your land. What can you do? First, knowing about adverse possession is half the battle. Second, inspect your property! This may not really be an issue for the suburban communities in our area, but if you are holding land for investment, or have a vacation home in a rural area, it is important that someone else is not occupying or using the land. You should look not only for the obvious such as structures and people, but also the less obvious like rainwater runoff ditches, well used trails, or evidence of regular removal of firewood or trees. Third, if you find someone or something in your inspection, inform the transgressor that he or she is trespassing (if you feel it is safe to do so), and if they do not quit possession of the property immediately and for good, legal action must be taken to protect your rights.
– Mike Malin