Adverse possession is a doctrine under which a trespasser, in physical possession of land owned by someone else may acquire valid title to the property. The adverse possessor to meet state specific requirements and listed below are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations. Adverse possession has a public policy motivation of allowing those who actually use or cultivate land have the benefits of ownership and to avoid neglected or unmaintained land.
The common law requirements have evolved over time and they vary between jurisdictions. Typically, for an adverse possessor to obtain title, their possession of the property must be:
Continuous
- A single adverse possessor must maintain continuous possession of the property.
- However, Howard v Kunto established that continuity may be maintained between successive adverse possessors as long as they are not the true owner, or owner of the title, and if there is privity, or connection, between them, like buyers-sellers.
Hostile
- In this context, "hostile" does not mean "unfriendly." Rather, it means that the possession infringes on the rights of the true owner.
- If the true owner consents or gives license (permission) to the adverse possessor's use of the property, possession is not hostile and thus, it is not adverse possession.
- Renters cannot be adverse possessors of the rented property, regardless of how long they possess it.
Open and Notorious
- Possession must be obvious to anyone who bothers to look, so as to put the true owner on notice that a trespasser is in possession.
- One will not succeed with an adverse possession claim if it is secret.
Actual
- The adverse possessor is actually in possession of someone else's property.
- The true owner has a cause of action for trespass, which must be pursued within the statute of limitations.
Exclusive
- The adverse possessor does not share control of the property with anyone else (unless in privity with themself).
- They exclude others from possession, as if they were the actual owner.
A typical statute requires possession for 7 years, if under color of title, or 20 years if not. The threshold, however, varies by jurisdiction. For example, California requires possession for only five years, while New York requires possession for 10 years to qualify as adverse possession.
[Last updated in June of 2024 by the Wex Definitions Team]