Adverse Possession
Adverse possession is a legal principle that allows a person who is not the legal owner of a property to acquire title to it by possessing the land for a statutorily defined period. This possession must meet several strict criteria: it must be open, notorious, continuous, exclusive, and hostile (or adverse) to the interests of the true owner. It is a complex and often controversial doctrine that effectively transfers ownership from a passive owner to an active possessor.
Purpose and Function
The legal doctrine of adverse possession serves several key functions, rooted in the idea of promoting the productive use of land and clarifying title ambiguities.
- Promoting Land Use: The principle encourages landowners to monitor and use their property. By penalizing absentee owners who neglect their land for long periods, the law favors those who actively occupy and improve it.
- Resolving Title Errors: Over time, property records can become muddled due to surveying errors, improper deed recordings, or unclear boundary lines. Adverse possession provides a mechanism to cure these defects by aligning legal title with the long-standing reality of physical occupation.
- Quieting Title: It provides a method for resolving uncertainty about ownership. After the statutory period, the “adverse possessor” can bring a court action to “quiet title,” which results in a court decree officially recognizing their ownership.
How It Is Used
To succeed in an adverse possession claim, the claimant must prove that their use of the land met specific, non-negotiable conditions for a continuous period, which varies by state (often between 5 and 20 years).
- Open and Notorious: The possession must be obvious and visible, not hidden. The possessor’s use of the land should be apparent enough to put a reasonably diligent owner on notice that someone else occupies their property.
- Hostile and Adverse: The possession must be without the owner’s permission. If the owner consents to be there (e.g., as a renter), the possession is not hostile, and a claim cannot be made.
- Exclusive and Continuous: The claimant must possess the land to the exclusion of others, including the true owner, and their possession must be uninterrupted for the entire statutory period.
Importance in Real Estate Transactions
Adverse possession represents a significant risk and critical area of due diligence in real estate.
- Risk to Owners: Landowners, particularly those with large, rural, or infrequently visited parcels, risk losing their property if they do not periodically inspect it for encroachments or unauthorized occupants.
- Title Insurance Impact: Standard title insurance policies typically list adverse possession as an exception to coverage. This is because a claim based on long-term physical use would not be discoverable through a public records search. An extended policy, often requiring a property survey, may offer some protection against such claims.
Buyer Due Diligence: Physical inspection and current survey are the best tools to identify potential adverse possession issues, such as a neighbor’s fence encroaching onto the property or an old path being used across the land. Ignoring these signs could lead to future loss of property rights.
