Adverse Land Possession

by : Parmdeep Vadesha

Traditional common law provides a method to claim the title to a land through use. The law rules for adverse land possession are codified under various laws. They allow a person to assign a title to a land from the owner just by using the land, out in open for all to see.

For example, if someone builds a fence on your land with the intention of taking the property and even goes as far as to pay property taxes for a certain period, yet you do nothing about it, then he or she can claim the title of the land. The theory behind this is that by not disputing for the use of your land, you have abandoned your rights to the property.

There are several things that have to be considered elemental, though, when dealing with matters of adverse land possession. These include:

1) The definition of 'adverse possession' involves many legal words which have special meanings and differ from their standard definitions. The elements of 'adverse possession' are the real estate is open, actual, exclusive, notorious, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period.

2) The adverse possessor should have acted in the manner of owner of the property. The possessor should have engaged in the act of possession consistent with the property at issue in a manner which was capable of being seen by all. During the statutory period the person claiming the title must be the only person to treat the land in the manner of an owner (it does not mean that he should be the exclusive user of the property). The possession should not 'hostile' to the title owner's interest in the property.

3) You can not claim adverse possession if it is a permissive use of the land. If the possession is not hostile then the land can be claimed under the theory of acquiescence.

4) All the elements of the adverse possession must be met throughout the statutory period. Even it is possible to claim adverse possession if there is a transfer of ownership, the ownership period is added cumulatively.

5) The length of time required to claim the title of land according to adverse land possession statute varies. It could be as short as few years or could be more than 20 years. Some states have the rule that the adverse possessor should have paid taxes every year on the land.

6) The defense against the adverse possession may claim the permissive use. If the claimant has been granted permission to use this property by the actual owner, then the claim fails. Government owned lands may be exempt from adverse possession.

7) If the land owner is also engaged in the use of the land in a manner consistent with that of the landowner, the claim fails. If the various aspects of the adverse possession is not able to hold out till the expiry of recommended statutory period or if the possession was hindered by non-use period of the property then also the claim is deemed fail.

It is important to note that the real estate laws concerning the adverse possession vary significantly between jurisdictions. The law, definition of terms and the applicable statute of limitations can very considerably between jurisdictions.