Adverse Possession

Definition Claim to the title of a private property by an occupant who has notoriously, openly, and visibly occupied the property continuously for a certain period (commonly 12 to 20 years). Adverse possession may be claimed for a property that has been abandoned, or in opposition of the rights of its actual (legal) owner who does not challenge its possession by the claimant . Definition: The laws of adverse possession allow a person to obtain title to land by simply using the land for a period of time specified by state and federal laws. Exkarab land occupied by famers getting registered to them after some years. For instance, a neighboring property owner may have built a fence, placing it several feet inward on your property. If you know the fence is on your land, but do not dispute its placement, you could lose title to that portion of your property. The intruder's use of the land must be in the open for everyone to see. Laws dictate other qualifications that must also be met. The length of time required to obtain land by adverse possession varies. If you feel you are involved in a situation like this be sure to check local laws as quickly as possible to find remedies for the problem. LEGAL DEFINITION : A method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by state law. Personal Property may also be acquired by adverse possession. Adverse possession is similar to prescription, another way to acquire title to real property by occupying it for a period of time. Prescription is not the same, however, because title acquired under it is presumed to have

resulted from a lost grant, as opposed to the expiration of the statutory time limit in adverse possession. Real Property Title to land is acquired by adverse possession as a result of the lapse of the Statute of Limitations for Ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made. The legal theory underlying the vesting of title by adverse possession is that title to land must be certain. Since the owner has, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period of time is recognized as its owner. Title by adverse possession may be acquired against any person or corporation not excepted by statute. Property held by the federal government, a state, or a Municipal Corporation cannot be taken by adverse possession. As long as the property has a public use, as with a highway or school property, its ownership cannot be lost through adverse possession. Anyone, including corporations, the federal government, states, and municipal corporations, can be an adverse possessor. Elements In order that adverse possession ripen into legal title, nonpermissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the uses to which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by a PREPONDERANCE OF THE EVIDENCE. Actual Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land,

whether legal or not, is essential. A Trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the propertyfor example, planting and harvesting crops or cutting and selling timberindicates actual possession. In some states acts that constitute actual possession are found in statute. Open and Notorious An adverse possessor must possess land openly for all the world to see, as a true owner would. Secretly occupying another's land does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant's possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time. Exclusive Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession. An adverse claimant cannot possess the property jointly with the owner. Two people may, however, claim title by adverse possession as joint tenants if they share occupancy of the land. When others or the general public have regularly used or occupied the land with the adverse claimant, the requirement of exclusive possession is not satisfied. Casual use of the property by others is not, however, inconsistent with exclusive possession. Generally, EASEMENTS do not affect the exclusive possession by an adverse possessor. In some jurisdictions easements exercised by the public or railroad rights of way will destroy exclusive possession. Hostile Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner's rights.

There need not be a dispute or fighting over title as long as the claimant intends to claim the land and hold it against the interests of the owner and all the world. Possession must be hostile from its commencement and must continue throughout the statutory period. One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession. Continuous Adverse possession must be continuous for the full statutory period if title is to vest. Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough. Continuity is sometimes explained as the daily control of the land by the adverse claimant for the length of the statutory period. If a person has continuously occupied only a part of all the land claimed under adverse possession, he or she will acquire title only to the occupied portion. While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only one person hold the land continuously for the statutory period. The time periods that successive adverse occupants have possessed the land may be added together to meet the continuity requirement if privity exists between the parties. The addition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests are related to each other by a sale or inheritance of the land or by operation of law, as possession by a trustee in Bankruptcy. Tacking is permitted only when the possession by the prior occupant had been adverse or under color of title. If any time lapses between the end of

one owner's possession and the start of another's occupation, there is no continuity, so tacking will not be allowed. Interruption of continuous possession deprives the adverse possessor of the legal effect of his or her prior occupancy. The statute of limitations will begin to run again from the time he or she starts actual, open, hostile, notorious, and exclusive possession. The length of the interruption is insignificant as long as it disturbs continuous possession. At that time the law restores constructive possession of the land to the true owner. The commencement of a lawsuit by the owner against the occupant over the right of ownership and possession of the land is one way to interrupt continuous possession. It may be an action to quiet title, for trespass, for an Injunction involving possessive rights, or to file a petition for registration of land title. Such lawsuits will destroy the continuity of possession only if successfully pursued to final judgments. If the owner chooses to abandon or settle a suit or if a court dismisses it, the continuity of possession is not breached. The entry of the owner upon the land with the intent to repossess it is a clear exercise of ownership that disturbs possession. A survey of the land made at the request of the true owner does not interrupt possession unless the purpose is to help the true owner take possession. The owner's actions must be notorious and open so there can be no doubt as to what is intended. An accidental, casual, secret, or permissive entry is ineffective. While the entry must be notorious, it must also be peaceable to prevent violence and warfare, which might otherwise result. The payment of real estate taxes by the owner, while demonstrating that he or she has not abandoned land, is not considered to have any impact on continuous possession. The adverse claimant may destroy his or her continuous possession by abandoning the land or giving it to someone else, even the owner, before the time at which title to it would vest. It does not matter how long or brief the Abandonment is as long as it was intentional. A temporary absence from the land is not the same as an abandonment and has no effect on the occupancy, provided it is for a reasonable period of time. Statutory Period The time period of the statute of limitations that must expire before title can be acquired by adverse possession varies from state

to state. No statute will begin to run until the adverse claimant actually possesses the property in question under color of title or claim of right, where necessary. As of that time, the landowner is entitled to bring a lawsuit against the possessor to recover the property. The adverse possessor must occupy the property for the full statutory period. In jurisdictions that also require color of title, it must coexist with possession for the complete period. If the statute of limitations has been suspendedfor example, because there is a lawsuit pending between the owner and the claimant or the owner is insane, an infant, or serving in the armed servicesthat amount of time will not be counted toward the time necessary for the acquisition of title. Acquired Title Once adverse possession is completed, the claimant has full legal title to the property. The expiration of the statutory period eliminates any Cause of Action or liability for ejectment or trespass regarding the new owner's prior unlawful possession of the property. Once the time period is satisfied, the adverse possessor is considered the original owner of the land. He or she may use the land any way he or she sees fit provided it is lawful. Personal Property Ownership of personal property may be acquired by adverse possession if the same requisites are met. The claimant must possess the property actually, openly, notoriously, exclusively, hostilely, under claim of right, and uninterrupted for the statutory period.

Adverse possession is a process by which premises can change ownership. It is a common law concept concerning the title to real property (land and the fixed structures built upon it). By adverse possession, title to another's real property can be acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period. For example, squatter's rights are a specific form of adverse possession.

The circumstances in which adverse possession arises determine the type of title acquired by the disseisor (the one who obtains the title from the original owner), which may be fee simple title, mineral rights, or another interest in real property. Adverse possession's origins are based both in statutory actions and in common law precepts, so the details concerning adverse possession actions vary by jurisdiction. The required period of uninterrupted possession is governed by the statute of limitations. Other elements of adverse possession are judicial constructs. [edit] Purpose and moral basis Adverse possession exists to cure potential or actual defects in real estate titles by putting a statute of limitations on possible litigation over ownership and possession. Because of the doctrine of adverse possession, a landowner can be secure in title to his land. Otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. The doctrine of adverse possession prevents this. This means the law may be used to reward a person who possesses the land of another for a requisite period of time. Failure of a landowner to exercise and defend his property rights for a certain period may result in the permanent loss of the landowner's interest in the property. Requirements for adverse possession The adverse party is called the disseisor, meaning one who dispossesses the true owner of the property. The disseisor must openly occupy the property exclusively, keeping out others, and use it as if it were his own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continual (although not necessarily continuous or constant) without challenge or permission from the lawful owner, for a fixed statutory period to acquire title. Where the property is of a type ordinarily occupied only during certain times (such as a summer cottage), the disseisor may need to have only exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.

[edit] Basic requirements for adverse possession Adverse possession requires at a minimum five basic conditions being met to perfect the title of the disseisor. These are:
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Actual possession of the property The disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession. In Cone v. West Virginia Pulp & Paper, the United States Court of Appeals for the Fourth Circuit held that Cone failed to establish actual possession by occasionally visiting the land and hunting on it, because his actions did not change the land from a wild and natural state. The actions of the disseisor must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements. Open and notorious use of the property The disseisor's use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about. Exclusive use of the property The disseisor holds the land to the exclusion of the true owner. If, for example, the disseisor builds a barn on the owner's property, and the owner then uses the barn, the disseisor cannot claim exclusive use. (Note: There may be more than one adverse possessor, taking as tenants in common, so long as the other elements are met.) Hostile or adverse use of the property The disseisor entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile. The disseisor's motivations may be viewed by the court in several ways: Objective viewused without true owner's permission and inconsistent with true owner's rights. Bad faith or intentional trespass viewused with the adverse possessor's subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility). Good faith viewa few courts have required that the party mistakenly believed that it

is his land. All views require that the disseisor openly claim the land against all possible claims.
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Continuous use of the property The disseisor must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor's time on the land, not how long true owner has been dispossessed of it. Occasional activity on the land with long gaps in activity fail the test of continuous possession. Courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal action, and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of the disseisor's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.

[edit] Specific requirements for adverse possession A court may require some combination of the following as elements of the basic requirements for adverse possession listed above. Which of these applies varies by jurisdiction and may be a result of interpreting common law or of statute.
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Claim of title or claim of right. The Supreme Court of the United States has ruled that the mere intent to take the land as one's own constitutes "claim of right."[citation needed] Other cases have determined that a claim of right exists if the person believes he has rightful claim to the property, even if that belief is mistaken.[citation needed] A negative example would be a timber thief who sneaks onto a property, cuts timber not visible from the road, and hauls the logs away at night. His actions, though they demonstrate actual possession, also demonstrate knowledge of guilt, as opposed to claim of right. Good faith (in a minority of states) or bad faith (sometimes called the "Maine Rule" although it is now abolished in Maine)[citation needed] Improvement, cultivation, or enclosure [5] Payment of property taxes. This may be required by statute, such as in California [6], or just a contributing element to a court's determination of possession. Both payment by the disseisor and by the true owner are relevant.

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A legal document that appears (incorrectly) to give the disseisor title. [7] Dispossession not under force of arms. Dispossession by armed invasion does not establish a claim of adverse possession against the true owner.[citation needed]

[edit] Effect of adverse possession A disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession. In some jurisdictions (such as England and Wales), the title of the landowner will be automatically extinguished once the relevant limitation period has passed. This process now applies only to unregistered land. In other jurisdictions, the disseisor acquires merely an equitable title; the landowner is considered to be a trustee of the property for the disseisor. Adverse possession extends only to the property actually possessed. If the original owner had a title to a greater area (or volume) of property, the disseisor does not obtain all of it. The exception to this is when the disseisor enters the land under a color of title to an entire parcel, his continuous and actual possession of a small part of that parcel will perfect his title to the entire parcel defined in his color of title. Thus a disseisor need not build a dwelling on, or farm on, every portion of a large tract in order to prove possession, as long as his title does correctly describe the entire parcel. In some jurisdictions, a person who has successfully obtained title to property by adverse possession may (optionally) bring an action in land court to "quiet title" of record in his name on some or all of the former owner's property. Such action will make it simpler to convey the interest to others in a definitive manner, and also serves as notice that there is a new owner of record, which may be a prerequisite to benefits such as equity loans or judicial standing as an abutter. Even if such action is not taken, the title is legally considered to belong to the new titleholder, with most of the benefits and duties, including paying property taxes to avoid losing title to the tax collector. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another. (Many jurisdictions have

accepted tax payment for the same parcel from two different parties without raising an objection or notifying either party that the other had also paid.) Adverse possession does not typically work against property owned by the public. The process of adverse possession would require a thorough analysis if private property is taken by eminent domain, after which control is given to a private corporation (such as a railroad), and then abandoned. Where land is registered under a Torrens title registration system or similar, special rules apply. It may be that the land cannot be affected by adverse possession (as was the case in England and Wales from 1875 to 1926), or that special rules apply. Adverse possession may also apply to territorial rights. In the United States, Georgia lost an island in the Savannah River to South Carolina, when South Carolina used fill from dredging to attach the island to its own shore. Since Georgia knew of this yet did nothing about it, the U.S. Supreme Court (which has original jurisdiction in such matters) granted this land to South Carolina, although the Treaty of Beaufort (1787) explicitly specified that the river's islands belonged to Georgia.[8] **** SC: Law on adverse possession needs change The Supreme Court has recommended to the Union government to suitably amend the law of adverse possession as it puts premium on dishonesty by legitimising possession of a rank trespasser on the land at the cost of the rightful owner. A bench comprising Justices Dalveer Bhandari and Harjit Singh Bedi, while upholding the judgement of the Gujarat High Court dismissed the appeal of a trespasser Hemaji Waghaji Jat and also imposed a cost of Rs. 25,000 on him for forcibly possessing the land of Bhikha Bhai Khengar Bhai Harijan and others for over a half century. The trial court had held that Jat had purchased six acres of land for Rs. 75 in 1925 from one Gama Bhai Gala Bhai and was in possession of the land for seventy years and at the same time also recorded a finding that Jat took forcible possession of the land in 1960. The trial court judgement was set aside by the District Judge Palanpur, Gujarat and the High Court also dismissed the petition of the appellant. The apex court in its

judgement noted, Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts and owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law, as it exists, is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of true owner, the bench noted. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law give seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner, the bench added. Justice Bhandari, writing for the bench in the 23-page judgement also observed, We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation. The apex court concluded by saying, In our considered view there is an urgent meet of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgement be sent to the Secretary Minisrty of Law and Justice, Department Legal Affairs and Government of India for taking appropriate steps in accordance with the law. The Supreme Court has also said the Right to Property is now part of Human Rights. Law on adverse possession needs change: Supreme Court There is urgent need for a fresh look, says the Bench Trespassers cannot take the benefit of law to claim possession of property left unattended for years by the owners, the Supreme Court said and asked the Centre to seriously consider change in law to prevent squatters from dishonestly enjoying property.

There is an urgent need for a fresh look regarding the law on adverse possession. We recommend the Centre seriously consider and make suitable changes in the law of adverse possession, a Bench comprising Justices Dalveer Bhandari and H S Bedi said. The law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate, the Bench said. The Bench was referring to the provision of the law which requires that the burden of proof lies on owners to show that they have the title to and have been in possession and were dispossessed within a period of 12 years from the date of filing the suit. The Courts observation came while dismissing an appeal filed by a person who had illegally taken possession of a land from its original owner. - PTI Premium on dishonesty We fail to comprehend, the Bench added, why the law should place a premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation. In the instant case, appellant Hemaji Waghaji Jat was alleged to have forcibly taken possession of vast acres of lands in Yuvarpura village of Deesa taluk in Gujarat in 1960 from the respondents and he was in continuous possession of the same till 1986. Under the law of limitation, a person cannot bring an action to recover any land after expiry of 12 years of adverse possession by another. Thus he became owner of the suit property by adverse possession.

However, he claimed that he was the true owner of the property and filed a suit for a declaration to that effect. A trial passed a decree in his favour. The respondents, Bhikhabhai Khengarbhar Harijan and others, preferred an appeal against this decree and the District Judge of Palanpur allowed the appeal holding that Mr. Hemaji had failed to prove that he bought the land in question. The Gujarat High Court confirmed the District Judges order. The present appeal by Mr. Hemaji to the Supreme Court is directed against this judgment. Dismissing the appeal, the Bench, quoting an earlier decision, said the effect of the law of limitation would seem draconian to the owner and a windfall for the squatter. Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment, it said. But now even right to property was considered very much a part of human rights and adverse possession must be considered from this perspective, the Bench said.