What is Adverse Possession?
Adverse possession is a legal doctrine under which a person can establish real estate ownership through consistent use (i.e. possession) of someone else's property. To establish a claim of adverse possession, the claimant must prove that the claimant's possession is:
- exclusive, meaning no other person has possessed the property for the extent the claim has existed;
- actual and uninterrupted, meaning there is no break in possession of the specific property for the extent the claim has existed;
- open and notorious, meaning that possession is obvious; and
- "hostile," not meaning any aggressive action, but instead meaning that the adverse possessor is using the property in a way that a reasonable actual-owner would use that particular property, and without initial permission.
Each of these necessary elements must have existed for ten years. Upon completion of the 10-year period of adversely possessing real property, such possession automatically "ripens" into title-ownership for the adverse possessor.
Defeating Adverse Possession
To defeat a claim of adverse possession, the record owner (or "true owner") must show the adverse-possessor has failed to establish one of the above elements. A common defense to adverse possession is the true owner's evidence that he (or a predecessor) has granted permission to the neighbor to possess the property at issue. When an individual grants initial permission to his neighbor to possess real property, the neighbor fails to establish the hostility element, and there is no adverse possession. Note that permission granted in the middle of the possessory does not defeat the hostility element. For example, where the neighbor has adversely possessed for 5 years, and the true owner purports to grant permission at the beginning of year 6, the "clock" ticking towards 10 years will continue.
Adverse possession is a simple concept, but its ultimate resolution can be a complex blend of legal and practical issues. Resolution requires competent and efficient legal counsel. The lawyers at Beresford Booth have many years of experience counseling clients in their real estate disputes and transactions, and we are prepared to advise you on a wide range of your real estate issues.
Originally published May 14, 2019
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
