The Shocking Law of Adverse Possession

Adverse possession is a legal doctrine under which a person (the "adverse possessor") trespassing on real property owned by someone else may acquire valid title to it so long as certain common law—and, if applicable, statutory—requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.

The common law requirements vary based on state and time, but the most typical requirements for adverse possession are that the possession be:

• Continuous. A single adverse possessor must remain on the property continuously. This does not mean that the adverse possessor has to stay on the land every hour of every day; rather, it addresses the total amount of time that the adverse possessor makes reasonable use of the property. For example, if the state in question requires 10 continuous years, then the adverse possessor must be in possession of the land for 10 years in a row, and not two periods of five years with a two-year break in between. Courts have held that seasonal use is acceptable for continuity as long as it is in a manner consistent with how the true owner would use the property. For example, if a beach house is typically only occupied during the summer, continuity would be established if an adverse possessor were to live in the beach house every summer for 10 years.
• Actual. The adverse possessor must be in actual possession of the land in question. It is not enough that the adverse possessor plan to occupy the land, or learn about the land; the adverse possessor must actually possess it physically.
• Hostile. Hostility, as a legal term of art, does not necessarily mean nasty or aggressive. Instead, it means that the possession infringes on the true owner's rights. A possession is not hostile if the true owner gives permission for the possession. For this reason, a renter generally cannot establish a claim of adverse possession against his or her landlord.
• Open and Notorious. Many courts interpret the “open and notorious” requirement to mean that the trespasser must act in a manner consistent with ownership. The main point of this requirement is that the true owner must be put on notice about the trespasser. If the trespasser acts secretively or sneakily, there can be no adverse possession.
• Exclusive. For the purposes of adverse possession, “exclusive possession” means the person possesses the land for himself or herself and not for others. Courts have generally cited an adverse possessor's sole use of a property as one factor upholding an adverse possession claim, although as a general rule, the exclusivity requirement might be interpreted to apply only against the true owner of the property. In other words, an adverse possessor may be able to share the property with another individual who is not the true owner.

Statutes and court cases prescribe different or more specific requirements for adverse possession in particular jurisdictions. For example, a Texas statute defines adverse possession as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.”

Although many people find the doctrine of adverse possession shocking, three principle rationales have been advanced for its justification:

1. Adverse possession is part of the general body of law known as the statute of limitations, which protect individuals against "stale" claims. Because the law does not want everyone to walk around paranoid about being sued for something that happened decades ago, it generally establishes time limits under which claims can be brought, for most claims.
2. Adverse possession validates disputed land titles where official records do not match reality.
3. Adverse possession encourages landowners to be vigilant and responsible about their land, as part of their social responsibility in avoiding waste.

While these justifications may be legally sound, the emotional response to the doctrine of adverse possession is almost always instinctively negative. This is likely due to three main reasons.

First, the doctrine appears to reward the wrongdoer at the expense of the innocent. Because the adverse possessor is, by definition, squatting illegally (in order to fulfill the hostility requirements), it seems wrong that he or she can gain ownership of the land by virtue of the illegal deed.

Second, the doctrine is emotionally upsetting because of the strong emotional ties between people and their land. For many people, there is something special and unique about the ownership of land, and given this heightened emotional investment, the doctrine of adverse possession is particularly upsetting.

Third, the doctrine is emotionally upsetting to the extent that it defies expectations for the role of laws. Most people see laws as protecting property rights, and if they have never heard of the doctrine of adverse possession, it can be shocking to imagine that the state would transfer their rightful title to a trespasser. If a landowner knows about adverse possession beforehand, he or she could alter his or her behavior to avoid it. However, if landowners are not aware of the doctrine, then they may feel blindsided and betrayed by the law.

Have there been any responses to these understandably emotion-based objections? One response is the laziness of the true owner (signaled by the demonstrable lack of regard for his or her land), coupled with the adverse possessor's investment and care for the land (signaled by the long-time effort at occupation), would justify the shift in ownership. And the truth is, no matter how emotionally objectionable adverse possession appears, it is relatively easy for a true owner to avoid. The true owner could take the adverse possessor to court, sue for trespass, and have him or her ejected. (In other words, the true owner could actually take action to enforce his or her property rights). Alternatively, if the true owner wants to avoid court and also does not necessarily need the trespasser to be removed from the land immediately, the true owner could simply provide documented consent to the trespasser allowing him or her to be on the land. Since this would effectively defeat the hostility requirement described above, it would almost certainly single-handedly negate any chance of an adverse possession.

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