Adverse Possession

Adverse possession regards rights in the land of another. Acquiring property by adverse possession is analogous to acquiring an easement by prescription. To acquire a prescriptive easement, the use must be:

  • open and notorious,
  • adverse and under claim of right, and
  • continuous and uninterrupted for the statutory period.

To acquire property by adverse possession, the elements are the same except with adverse possession, there is the additional element of:

  • exclusivity of use.

If the elements are met and the statute of limitations has run, title to the property will vest in the possessor.

Watch out for the deadline.  If the true owner files suit before the 15 year period of limitations runs, even if the limitations period runs before the suit proceeds to judgment, the judgment will relate back to the time the complaint was filed. The true owner must bring an action before the 15 year period (if tax deed, 10 years; if court decree or deed of ministerial officer, 5 years) or title will vest in the possessor. The statute of limitations does not run against government owned land.

Elements defined:  

  • Open and notorious = sufficiently apparent to put the true owner on notice that a trespass is occurring
  • Actual and exclusive = actual occupation not shared with the true owner or the public
  • Continuous = the occupancy that the average owner would make; intermittent periods not usually sufficient; can tack on periods of adverse possession by predecessor
  • Adverse = hostile = without permission; if permissive, then trespasser must communicate that they are claiming hostility and the limitations period begins as to that element

If you think your neighbor is trespassing on your property and there could be an issue of adverse possession, keep the relationship amicable, consider using the property to destroy the element of exclusivity and expressing that their use is permissive. If you are not agreeable to their use, consider conveying that to them, putting up a fence, and preparing yourself for litigation, beginning your suit well before the 15 year period ends.

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