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| Property law |
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| Part of the common law series |
| Acquisition of property |
| Gift · Adverse possession · Deed |
| Lost, mislaid, or abandoned |
| Alienation · Bailment · License |
| Estates in land |
| Allodial title · Fee simple · Fee tail |
| Life estate · Defeasible estate |
| Future interest · Concurrent estate |
| Leasehold estate · Condominiums |
| Conveyancing of interests in land |
| Bona fide purchaser |
| Torrens title · Strata title |
| Estoppel by deed · Quitclaim deed |
| Mortgage · Equitable conversion |
| Action to quiet title |
| Limiting control over future use |
| Restraint on alienation |
| Rule against perpetuities |
| Rule in Shelley\'s Case |
| Doctrine of worthier title |
| Nonpossessory interest in land |
| Easement · Profit |
| Covenant running with the land |
| Equitable servitude |
| Related topics |
| Fixtures · Waste · Partition |
| Riparian water rights |
| Lateral and subjacent support |
| Assignment · Nemo dat |
| Other areas of the common law |
| Contract law · Tort law |
| Wills and trusts |
| Criminal Law · Evidence |
In common law, adverse possession is the process by which title to another\'s real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner\'s rights for a specified period of time. Circumstances of the adverse possession determine the type of title acquired by the adverse possessor, which may be fee simple title, mineral rights, or another interest in real property.
The law of adverse possession is partly statutory and partly common law. The required period of uninterrupted possession arises out of a statutory limitation period or statute of limitations. Other elements of adverse possession are judicial constructs.
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Adverse possession requires three elements in regards to the possession of the propertyAlthough some jurisdictions further require the possession to be made under a claim of title or a claim of right.:
In simple terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. Where the property is of a type ordinarily only occupied during certain times (such as a summer cottage), the adverse possessor may only need to have exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.
An adverse possessor will be committing a trespass on the property that they have taken and the owner of the property could cause them to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that the action of trespass is brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the land owner to evict the adverse possessor depends on the jurisdiction.
In some jurisdictions (such as England and Wales), the title of the landowner will be automatically extinguished once the relevant limitation period has passed. This process now only applies to unregistered land.
In other jurisdictions, the adverse possessor acquires merely an equitable title: the land owner being a trustee of the property for them.
Adverse possession only extends to the property adversely possessed. If the original owner had a title to a greater area (or volume) of property, the adverse possessor does not obtain all of it.
In some jurisdictions, a person who has successfully obtained title to property by adverse possession may (optionally) bring an action in land court to "quiet title" of record in their names on some or all of the former owner\'s property. Such action will make it simpler to convey the interest to others in a definitive manner, and also serves as notice that there is a new "owner" of record, which may be a pre-requisite to certain benefits (including equity loans, or judicial standing as an abutter). However, even if such action is not taken, the title is legally theirs, with most of the benefits and duties, including paying property taxes to avoid losing title to the tax collector. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another.
Adverse possession does not typically work against property owned by a government agency. However, there will be a more complicated analysis if private property were taken by eminent domain, control given to a private corporation (such as a railroad), then abandoned.
Where land is registered under a Torrens title registration system or similar, special rules apply. It may be that the land cannot be affected by adverse possession (as was the case in England and Wales from 1875 to 1926), or that special rules apply.
Adverse possession may also apply to territorial rights. In the United States, Georgia lost an island in the Savannah River to South Carolina, when that state used fill from dredging to attach the island to its own shore. Since Georgia knew of this yet did nothing about it, the U.S. Supreme Court (which has original jurisdiction in such matters) granted this land to South Carolina, even though the Treaty of Beaufort (1787) explicitly specified that the river\'s islands belonged to Georgia.
In England and Wales, adverse possession has been governed by section 15 of the Limitation Act 1980, since 1 May 1981.Section 41(2) Limitation Act 1980 The limitation period for the adverse possession of land is 12 years in virtue of Section 15(1).Section 15(1) Limitation Act 1980
The position of a registered landowner has been greatly improved since the coming into force of the Land Registration Act 2002. Where land is registered, the adverse possessor may apply to be registered as owner after 10 years of adverse possession and the Land Registry must give notice to the true owner of this application. This gives the land owner a statutory period of time [65 business days] to object to the adverse possession, after which the true owner usually will have a further two years in which to evict the adverse possessor. This effectively prevents the removal of a land owner\'s right to property without their knowledge.
Where a tenant adversely possess land, there is a presumption that they are doing so in a way that will benefit their landlord at the end of their term. If the land does not belong to their landlord, the land will become part of both the tenancy and the reversion. If the land does belong to their landlord it would seem that it will be gained by the tenant but only for the period of their term. Smirk v Lyndale Developments Ltd [1974] 3 WLR 91
Adverse possession is sometimes called "squatters\' rights". If the squatter abandons the property for a period, or if the rightful owner effectively removes the squatter\'s access even temporarily during the statutory period, or even gives his permission, the "clock" usually stops. For example, if the required period in a given jurisdiction is twenty years and the squatter is removed after only fifteen years, the squatter loses the benefit of that 15 year possession (i.e., the "clock" is re-set to "zero"). If that squatter later retakes possession of the property, that squatter must, in order to acquire title, remain on the property for a full twenty years after the date on which the squatter retook possession. In this example, the squatter would have to have held the property for a total of 35 years (the 15 original years plus the 20 later years) to acquire title.
However, one squatter may pass along continuous possession to another squatter, known as "tacking", until the adverse possession period is complete. A lawful owner may also restart the "clock" at "zero" by giving temporary permission for the occupation of the property, thus defeating the necessary "continuous and hostile" element. Evidence that a "squatter" paid rent to the owner would defeat adverse possession for that period.
Adverse possession is in some ways similar to homesteading. Like the adverse possessor, the homesteader may gain title to property by using the land and fulfilling certain other conditions. In homesteading, however, the possession of the property is not hostile; the land is either considered to have no legal owner or it is owned by the government. The government allows the homesteader to use the land with the expectation that the homesteader who fulfills the requirements necessary for the homestead will gain title to the property.
The homestead principle and squatter\'s rights embody the most basic concept of property and ownership, which can be summed up by the adage "possession is nine-tenths of the law"; in other words, "the person who uses the property owns it". The homestead principle and squatter\'s rights pre-date formal property laws and to a large degree modern property law is a formalization and expansion of these simple ideas.
The homestead principle is the idea that if no one is using or possessing property, the first person to claim it and use it consistently over a period of time owns the property. Squatter\'s rights embodies the idea that if one property owner neglects property and fails to use it, and a second person starts to tend and use the property, then after a certain period of time the first person\'s claim to the property is lost and ownership transfers to the second person, who is actually using the property.
The legal principle of homesteading, then, is a formalization of the fundamental homestead principle in the same way that the right of adverse possession is a formalization of the fundamental and pre-existing principle of squatter\'s rights.
The essential ideas behind the homestead principle and squatter\'s rights hold generally for any type of item or property of which ownership can be asserted by simple use or possession. In modern law, homesteading and the right of adverse possession refer exclusively to real property. In the realm of personal property, the same impulse is summarized by the adage "finders keepers" and formalized by laws and conventions about abandoned property.
Some legal scholars have proposed to extend the concept of adverse possession to intellectual property law, in particular to reconcile intellectual property and antitrust lawConstance E. Bagley and Gavin Clarkson, "Adverse Possession for Intellectual Property: Adapting an Ancient Concept to Resolve Conflicts between Antitrust and Intellectual Property Laws in the Information Age" Harvard Journal of Law & Technology 16:2 (Spring 2003) full text or to unify copyright law and property law.Michael James Arrett, "Adverse Possession of Copyright: A Proposal to Complete Copyright\'s Unification with Property Law", Journal of Corporation Law 31:1 (October 2005) abstract; full text (pay)
Adverse possession grants only those rights in the adversely possessed property which are \'taken\' by the adverse possesser. For example, an adverse possesser might choose to take an easement, rather than the entire fee title to the property. In this manner, it is possible to adversely possess an easement, under the legal doctrine of prescription. This must also be done openly but need not be exclusive, and must outlast the same required statutory eviction period. It is common practice in cities such as New York, where builders often leave sidewalk space or plazas in front of their buildings to meet zoning requirements, to close public areas they own periodically in order to prevent the creation of a permanent easement and compromise their exclusive property rights.
Furthermore, if a property owner interferes with an easement upon his property in a manner that satisfies the requirements for adverse prescription (e.g., locking the gates to a commonly used area, and nobody does anything about it), they will successfully extinguish the easement. This is another reason to quiet title after a successful adverse possession or adverse prescription; it clarifies the record of who should take action to preserve the adverse title or easement while evidence is still fresh.
For example, given a deeded easement to use someone else\'s driveway to reach a garage, if a fence or permanently locked gate prevents the use, and nothing is done to remove and circumvent the obstacle, and the statutory period expires, then the easement ceases to have any legal force, even though the deed held by the fee simple owner stated that the owner\'s interest was subject to the easement.
Some non-common law jurisdictions have laws similar to adverse possession. For example, Louisiana has a legal doctrine called acquisitive prescription.
In Roman law, usucapio laws allowed someone who was in possession of a good without title to become the lawful proprietor if the original owner didn\'t show up after some time (one or two years), unless the good was obtained illegally (by theft or force).
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