How do I Qualify for Adverse Possession?

M. Lupica

Adverse possession occurs when someone takes title to a piece of land owned by someone else simply by using the land over a period of time that is mandated by law. Though the amount of time that gives rise to adverse possession varies from jurisdiction to jurisdiction, the four basic requirements are typically the same. In order to take title of land through adverse possession, the adverse possessor must make actual use of the land, the use must not be hidden, the possessor must not have been granted permission to use the land, and the use must be continuous over the applicable period of time.

Businessman with a briefcase
Businessman with a briefcase

There must be actual use of the land to effect adverse possession. This nature of the use generally dictates how much of the tract of land is adversely possessed. Though not every inch of the land must be occupied in order for the adverse possessor to take the land in its entirety, if the possessor appears to control the land in its entirety to outsiders, then it is said that he or she constructively possesses the entire tract. If not, then adverse possession will simply apply to the portion of the land that the possessor has actually used.

Adverse possession will not be effected if the adverse possessor’s use of the land is hidden to its original owner. It is said that the use must be “open and notorious.” The reason for this is in the interest of fairness. The original owner should not be penalized for the non-use of his or her land if the adverse possessor does not make his or her intent to use the land clear. Further, if the original owner has granted permission for the use of the land, there is no adverse possession. If the original owner becomes aware of the adverse possessor’s use of the land and explicitly acknowledges that it is permissible, it has the same effect as if the adverse possessor originally entered the land with the owner’s permission.

At common law, the period of time the adverse possessor had to use the land to take title was 20 years. This is still the most common period of time mandated by law, but many jurisdictions veer from this standard. The adverse possessor’s use of the land must be continuous for the period of time stated in the jurisdiction’s adverse possession law. Even if the possessor meets all of the above qualifications, but does so in intermittent periods that amount to the statutorily mandated period of time, then the possessor may not take title to the land.

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