Adverse Possession

Overview#

Adverse possession is the legal doctrine by which a person can acquire title to land owned by another through long-standing, hostile occupation. It is one of the oldest doctrines in property law, rooted in the policy that land should be put to productive use and that stale claims should not be allowed to disrupt settled expectations.

For the land surveyor, adverse possession is important for two reasons. First, the surveyor's fieldwork -- documenting fences, improvements, occupation lines, and land use -- often provides the critical evidence that supports or defeats an adverse possession claim. Second, the surveyor must understand that the record boundary shown on a deed may not reflect the actual ownership boundary if adverse possession has occurred.

"Acquiring title to, or rights in, land by adverse possession includes the idea of hostility (either direct or implied) and can be effective only because of the operation of the statute of limitations. It is an actual taking of one's rights and giving them to another." -- Robillard & Wilson, Evidence and Procedures for Boundary Location (6th Ed.), Ch. 13, Sec. 13-2

Unlike acquiescence, which is based on mutual recognition, adverse possession is an adversarial process. The adverse possessor takes land against the will (or at least without the permission) of the true owner. The law allows this because of the statute of limitations: if the true owner fails to assert their rights within the prescribed time, the law presumes they have abandoned them.

Definition and Purpose#

Adverse possession is the involuntary transfer of title from the record owner to a person who has occupied the land under conditions that satisfy the legal requirements for a statutory period. Upon completion of the statutory period, the adverse possessor acquires a new and independent title to the land.

"One does not have to initiate litigation to get title by adverse possession, for title is created or passes instantly at the exact moment when all the requirements are met." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 3, Sec. 3.8

The purposes of the doctrine include:

1. Encouraging productive use of land. An owner who abandons or neglects property should not be able to return decades later and reclaim it from someone who has put it to use.
2. Quieting title. Adverse possession provides a mechanism for resolving ancient and uncertain claims.
3. Protecting reliance. A person who occupies, improves, and relies on land for many years acquires expectations that the law protects.
4. Punishing laches. The true owner who sleeps on their rights forfeits them.

The Required Elements#

To establish adverse possession, the claimant must prove that their possession was:

All elements must coexist for the entire statutory period. If any element is interrupted -- even briefly -- the clock restarts.

Hostile

Hostility, in the legal sense, does not mean ill will or animosity. It means that the possession is without permission from the true owner. There are two competing tests for hostility:

Objective test (majority rule): Hostility is determined by the outward manifestation of the possessor's conduct. If the possessor treats the land as their own, occupation is hostile regardless of the possessor's subjective belief about ownership. Under this test, a person who honestly (but mistakenly) believes they own the disputed strip is a hostile possessor.

Subjective test (minority rule): Some jurisdictions require the possessor to have actual knowledge that the land belongs to another, or at least to have the intent to claim the land as their own regardless of who owns it. Under this stricter test, an innocent mistake about the boundary may not establish hostility.

The trend in modern law favors the objective test, but the surveyor should be aware that the applicable standard varies by jurisdiction.

Actual

The possession must be actual and physical -- the claimant must be using the land in a manner consistent with its character. What constitutes "actual" possession depends on the type of land:

• Residential land: Building structures, maintaining a yard, installing fences or landscaping
• Agricultural land: Plowing, planting, harvesting, grazing livestock
• Timber land: Cutting timber, maintaining logging roads
• Wild or undeveloped land: Less intensive use may suffice, but some physical act of dominion is required

Merely walking across the land, hunting on it, or paying taxes on it (alone) is generally insufficient.

Open and Notorious

The possession must be visible and obvious -- not hidden or secret. The standard is whether the true owner, exercising reasonable diligence, would have been aware of the adverse occupation. If the possession is so concealed that the true owner could not reasonably discover it, the element is not satisfied.

Examples of open and notorious possession include:

• Building a fence across the true boundary
• Constructing a building or outbuilding on the disputed land
• Mowing, grading, or landscaping the disputed area
• Installing a driveway, garden, or swimming pool

Exclusive

The adverse possessor must occupy the land to the exclusion of the true owner and the general public. If the true owner also uses the land, or if the public freely crosses it, the possession is not exclusive.

Exclusive does not mean the possessor cannot share the land with family members, tenants, or invitees. It means the possessor must act as the owner would -- controlling access and excluding others at will.

Continuous

The possession must be continuous and uninterrupted for the full statutory period. This does not mean constant, 24-hour-a-day occupation. It means the possession must be consistent with how an owner would use the property.

For a residential lot, continuous possession means regular use -- mowing the lawn, maintaining the fence, occupying the structure. Seasonal use may suffice if it is consistent with the character of the land (e.g., a summer cottage used only in summer is continuously possessed during the off-season if the owner's pattern of use is seasonal).

For the Statutory Period

The statute of limitations for adverse possession varies significantly by jurisdiction:

Some states have shorter periods when the adverse possessor has color of title (a defective deed purporting to convey the property) or pays property taxes on the disputed land.

Color of Title vs. Claim of Right#

Color of Title

Color of title exists when the adverse possessor holds a written instrument (deed, will, court decree) that purports to convey title to the land but is defective in some way -- perhaps the grantor did not actually own the property, or the description was erroneous, or the instrument was not properly executed.

Color of title provides two advantages:

1. Shorter statutory period in some jurisdictions
2. Constructive possession of the entire parcel described in the defective instrument, even if actual occupation covers only a portion

Claim of Right

Claim of right (also called "claim of title") means that the possessor occupies the land as if they own it -- asserting dominion and control without acknowledging anyone else's superior right. Unlike color of title, claim of right does not require a written instrument. It is an intent-based requirement: the possessor must treat the land as their own.

Interruption and Tolling#

The statute of limitations for adverse possession can be interrupted or tolled under certain circumstances:

• Ouster by the true owner. If the true owner physically removes the adverse possessor or reasserts possession, the clock resets.
• Legal action. If the true owner files a lawsuit to recover possession, the statute is tolled.
• Disability. In many states, the statute does not begin to run against a true owner who is under a legal disability at the time the adverse possession commences (minority, mental incompetence, imprisonment). The statute begins only when the disability is removed.
• Abandonment. If the adverse possessor abandons the property, even briefly, the continuous element fails and the clock restarts.

Tacking#

Tacking allows successive adverse possessors to combine their periods of occupation to satisfy the statutory requirement. If Possessor A occupies land adversely for 8 years, then sells or transfers to Possessor B, who occupies adversely for 12 years, the combined 20 years may satisfy a 20-year statute.

For tacking to apply, there must be privity between the successive possessors -- a transfer of possession through sale, inheritance, or other recognized conveyance. Random, unconnected occupations cannot be tacked.

"In most states, this allows tacking on of adverse or possession rights." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 23 (Glossary)

Requirements for Tacking

1. Privity of estate -- a recognized legal relationship between successive possessors (deed, will, inheritance, contract)
2. Continuity -- no gap in possession between the successive occupants
3. Consistency -- each successive possessor must meet all required elements during their period of occupation

Government Lands#

One of the most important limitations on adverse possession is that government lands generally cannot be adversely possessed. This principle, derived from the maxim nullum tempus occurrit regi ("time does not run against the king"), protects public lands from private acquisition through occupation.

"Although there are exceptions, in general, unwritten conveyances (the gaining of rights in land without writings) cannot operate against the federal, state, or local governments, and, in some jurisdictions, against quasi-governmental bodies. In most states, irrespective of how long a person occupies property or uses a road, occupancy gives no rights against the public." -- Robillard & Wilson, Evidence and Procedures for Boundary Location (6th Ed.), Ch. 13, Sec. 13-3

This includes:

• Federal public lands (managed by BLM, Forest Service, etc.)
• State-owned lands (parks, forests, institutional lands)
• Municipal lands (roads, parks, public rights-of-way)
• Lands held in trust for public purposes

Some states have statutory exceptions that allow adverse possession of certain categories of government land, but these are narrow and heavily restricted.

The Effect on Adjoining Boundaries#

When adverse possession is established along a boundary between two private parcels, the effect is to move the boundary to the line of adverse occupation. The record description is not physically changed, but the ownership boundary shifts.

This creates practical problems for surveyors. A survey that shows only the record boundary may be misleading. A survey that shows the adverse possession line may be making a legal determination that the surveyor is not qualified to make.

The best practice is to show both:

1. The record boundary -- as established by the deed, plat, and monuments
2. The occupation boundary -- as evidenced by fences, improvements, and land use
3. A note explaining the discrepancy and recommending legal consultation

The Surveyor's Role in Adverse Possession Claims#

The surveyor's role in adverse possession is that of an evidence collector, not a legal decision-maker.

"The surveyor in adverse possession cases is merely a collector of evidence for the attorney; he or she does not rule on the law." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 7, Sec. 7.23

The surveyor's responsibilities include:

1. Locating and mapping the record boundary from deeds, plats, and monuments
2. Locating and mapping the occupation boundary from fences, improvements, and use patterns
3. Measuring the discrepancy between the two
4. Documenting the physical evidence of occupation -- type, condition, and extent of fences, structures, landscaping, and other improvements
5. Interviewing neighbors (when appropriate) about the history of the fence line or occupation
6. Reporting the findings clearly and completely, without making legal conclusions

The surveyor should not opine on whether adverse possession has been established. That determination requires legal analysis of the elements, the applicable statute, and the sufficiency of the evidence -- all of which are within the attorney's domain.

Common Misconceptions#

Key Takeaways#

• Adverse possession allows a person to acquire title to another's land through hostile, actual, open, exclusive, and continuous occupation for the statutory period.
• The required elements must coexist for the entire statutory period. Interruption resets the clock.
• Hostility means without permission -- not animosity. The majority of jurisdictions apply an objective test based on the possessor's conduct.
• Color of title (a defective deed) may shorten the statutory period and extend constructive possession to the entire described parcel.
• Tacking allows successive possessors to combine their periods if there is privity between them.
• Government lands generally cannot be adversely possessed.
• The surveyor's role is to collect and document evidence of occupation, not to make legal determinations about whether adverse possession has been established.
• The practical effect of adverse possession is to move the ownership boundary to the line of actual occupation, creating a discrepancy between the record and the reality.

References#

1. Robillard, W.G. & Wilson, D.A. Brown's Boundary Control and Legal Principles (7th Ed.). John Wiley & Sons, 2014. Chapters 3, 7.
2. Robillard, W.G. & Wilson, D.A. Evidence and Procedures for Boundary Location (6th Ed.). John Wiley & Sons, 2011. Chapter 13.
3. Stoebuck, W.B. & Whitman, D.A. The Law of Property (3rd Ed.). West Publishing, 2000. Chapter 11.
4. Howard v. Kunto, 477 P.2d 210 (Wash. App. 1970) (tacking).
5. Mannillo v. Gorski, 255 A.2d 258 (N.J. 1969) (hostile possession and good faith).
6. Clark, F.E. Law of Surveying and Boundaries (6th Ed.). Lexis Law Publishing, 1999.