A Brief Overview of Adverse possession
Adverse possession is an old, but extremely useful concept of law. Its very existence seems to fly in the face of justice and equity in that it appears to reward “wrongdoers” for actions which would, on the face of it, be contrary to our long-held views of property ownership. Adverse possession is an unusual “backwater” of law poorly understood by most laymen, probably because of this seeming inequity.
The machination of claiming adverse possession is a complex legal issue that requires the engaging of attorneys. However, it is an area of law with which land surveyors practicing boundary functions should be well acquainted. The knowledgeable land surveyor can be an important and vital member of the legal team retained to prosecute or defend claims of adverse possession.
HISTORY
The concept of adverse possession appears in a portion of the Code of Hammurabi, some 2000 years BCE (Before Christian Era). Law 30 states “If a chieftain or a man leave his house, garden, and field … and some one else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.[i]” Interestingly, the previous three of Hammurabi’s Laws deal with exceptions to this rule: for a soldier captured in battle, a soldier killed in battle, and the case of a juvenile son of a land owner. Of the 282 rules, three deal directly with the concept we know today as adverse possession. The implication is that the concept of adverse possession has been with us for a very long time. History is replete with examples of statutes enabling claimants to gain title to land through adverse possession.
The ancient Romans held the belief that the land had a kind of spirit that was nurtured by the possessor and user of the land. The possessor or user of the land was considered to have a greater “ownership” of the land than the titled owner. Even today, we have a saying “…possession is nine-tenths of the law…” which had its origins in the concepts of adverse possession.
Much of our law regarding real property derives from English law, a natural progression from our historical beginnings as a British Colony. Our modern concept of land ownership had its beginnings in feudal times, which began in earnest with the conquering of the British Isles by William the Conqueror in 1066. William consolidated ownership of land under the crown. The king owned all the land and parceled it, or its use, out to his subordinates in return for their loyalty, service in his armies, prayers and payments in coin and produce from the land.
The Statute of Westminster[ii], in 1275, limited actions for the recovery of land by precluding potential suitors from establishing dated claims, the earliest codification of adverse possession in English law. In early England, where land records were often poor and literacy was rare, the best evidence of ownership was possession. In 1639, the Statute of Limitations[iii] set the period within which an owner could sue for recovery from such possession at 20 years.
Land was not seen to be of intrinsic value but valuable because of what it could produce. In this line of thought, the person who possesses the land and uses it to produce something of ultimate benefit to society was seen as the person who held best title to the land. Indeed, this is where the modern concept of adverse possession derives. The person who tends the vineyard and produces wine for sale in the community was seen as having more of a valid claim to the land than the person who paid good money for the land and then does nothing with it.
The value of land was based on the value of what was produced from the land. Because the land “produced” men who could fight, horses and oxen that could provide transport, and food, clothing and building materials to nurture, sustain and protect, the land and ownership of the land was (and remains) extremely important. The period in English law between Williams’ conquer of England in 1066 and the abolition of primogeniture[iv], in 1925, saw many innovations in statutory attempts to gain, hold and perpetuate the ownership of land. The Statute of Wills, in 1540, which allowed lands to be passed down to heirs[v]; the Statute of Tenures in 1660[vi], which ended the feudal system and created the modern fee simple title. The statutes of adverse possession remained as part of the law because of their usefulness. In fact, it has been maintained that the statutes regarding adverse possession are still with us after 4000 years because they are so valuable in gaining, holding and perpetuating ownership of land.
PURPOSE
The statutes concerning adverse possession vary from state to state. However, all statutes are based on a limitation in time as to when the “true owner” may bring suit to recover the land adversely possessed by another. Today, the majority of adverse possession cases are not brought by villains out to “legally steal” the lands of another. Most cases are brought to quiet title to portions of land whose boundaries are in dispute.
As odd as it may sound, the statutes regarding adverse possession actually serve to strengthen and “prove up” titles to land. By limiting the time in which actions to recover may be brought, title to land is protected from spurious lawsuits based upon possible interests from many years ago. Because of the way our nation was founded and grew, the initial legal title may not be entirely clear or even properly valid. Although much of our country falls under the jurisdiction of the Public Lands Survey System, the original pioneers often “squatted” on tracts of land and created farms, homesteads and ranches. If there was no method of perfecting these claims or of preventing claims arising from murky possibilities of claim in the distant past, insuring title would be a nightmare. Adverse possession allows title insurance companies to forego searches for chain of title extending back overly long periods of time. Taken in this light, adverse possession actually strengthens claims of title in which the chain extends back earlier than the time limit for legal action based on adverse possession! Seventy-five-year-old claims to real property, however valid they may seem, are barred from the courts because of the statutes of limitations codified in the statutes governing adverse possession.
PRACTICE
There are four main doctrinal areas under which the legal pundits place the concepts of adverse possession. None of the areas stands by itself as a complete elucidation of adverse possession, but, taken together, help explain the legal doctrines behind the concepts. All the areas make use of arguments, now over 4000 years old, that award ownership of lands to the person whom makes the best or highest use of the land. Although individual designs may differ on what constitutes highest use, the main concept is that land being used is more valuable than idle land. As is often the case at law, utilitarianism prevails. The doctrines are:
Doctrine of Limitation: As previously mentioned, limiting the time period in which legal action to recover land may be brought protects possessory interests in the land. This allows society as a whole to benefit from the land being held adversely but allows a sufficient period for the “true owner” to recover the land. Title insurance and mortgage funding would be very risky if it were possible for a claim to property stemming back over 50 years. Memories grow dim and evidence becomes unclear. Without a limitation in which to bring suit for recovery, land ownership, as we know it today, would not exist.
Doctrine of Administration: The statutes concerning adverse possession provide a reasonable method for curing minor title defects by protecting the rights of the possessor. Adverse possession can be an effective and efficient way to remove or cure clouds of title where boundary lines may be vague, in error or simply forgot.
Doctrine of Development: The adverse possession statutes promoted rapid development of “wild” lands with weak or indeterminate title. The early settler would never have built their farms on land which they may never truly own. Adverse possession provided a mechanism for them to perfect title to the land which they had worked hard to improve.
Doctrine of Efficiency or Personhood: This measures the strength of a persons “attachment” to the land and awards title to the claimant with the strongest “attachment”. The possessor who maintains and improves the land is has a more valid claim to the land than the possessor who never visits or cares for the land. Justice Oliver Wendell Holmes wrote, “A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped.”[vii] While this may be an impassioned writing, it none the less makes the point.
REQUIREMENTS
Now that we are familiar with the history and benefits of adverse possession, we turn our attention to the requirements to prove adverse possession. Because of the very objections to adverse possession which the reader may have held at the onset of this article, it will come as no surprise that the statutes and the courts are stringent in their approach to the requirements to perfect title through adverse possession. The claimant must provide “clear and positive” or “clear and convincing” proof of each of the required elements; it cannot be established by inference. This level of proof is more substantial than the “preponderance of evidence” usually required in civil lawsuits. Because the claims are factually driven, each case must be examined on its own merits and adjudicated on a case-by-case basis.
There are four main elements to prove in each case of adverse possession. The elements are physical requirements, mental requirements, continuity of possession and statutory period.
Physical Requirements:
The possession must be open, notorious and visible. It must also be exclusive and it must be actual. Some states include continuity of possession among the physical requirements. For purposes of this article, continuity will be discussed separately.
The occupation must not be covert. It should be clear to any normal person who inspects the property that someone is using the property in sort reasonable fashion. In other words, if the titled owner were to visit the property, it would be apparent that another is making use of the land. Many states refer to “inclosing” the property within a fence.
The possession must be exclusive. Generally, the property cannot be shared with others, especially the titled owner. There are cases where two adverse possessors have occupied the same tract and ended up with joint title. The exclusivity must be in keeping with normal standards under which a titled owner would operate. For example, if a titled owner would allow others to hunt, fish or gather blackberries on the property, the adverse possessor may allow this also. The exclusivity refers to the possession, not necessarily the use. In fact, the possessor may install a tenant on the land and exact rents just as a titled owner might.
The possession must also be actual. Though this overlaps the concepts of “open, notorious and visible”, it does extend the definition a bit. The adverse possessor must be using a “reasonable portion” of the land. If the adverse possessor built a small cabin on a pond in a corner of a vast 1,000-acre parcel, the minor occupation probably would not be enough to claim the entire parcel though a claim against a reasonable part might be successful. It should also be noted that, if the subsurface mineral rights have already been severed from the surface rights, adverse possession of the surface would not give rights to the subsurface minerals. This is consistent with the concept that the adverse possessor operates and uses the land in similar fashion to a titled owner.
Mental Requirements:
Most courts hold that the adverse possession must be hostile. Once again, this does not mean that the possessor walks about the property heavily armed and ready to repel all invaders. Instead, it refers to the fact that the possession is inconsistent with the titled owner’s rights and without the owner’s consent.
In the case of a landlord-tenant relationship, the tenant’s occupation is clearly not hostile so long as the tenant possesses the property under a valid lease. If the tenant stays on the property after the end of the lease and the owner fails to eject the tenant, the occupation may become hostile and begin the adverse possession clock.
There are two main trains of thought regarding the hostility of the possession:
The “Connecticut Rule”, followed by most courts, maintains that the possessor must simply have some “claim of title”. The claim may be no more than a long-standing use of the property. In states that follow the Connecticut Rule, adverse possession is possible when errors in boundary location are discovered. For example, a fence located 2 feet onto another’s property may ripen into fee title for the strip when a modern survey discloses the error.
The “Maine Rule” holds the opposite from the Connecticut Rule. Under this rule, the adverse possessor must believe that they have a bona fide right to the property. In this case, the accidental error in location of the fence will not ripen into fee title for the possessor. The reasoning is that the discovery of an error proves the lack of hostility during the occupation. The use of this rule requires the courts to examine the intent of the possessor, an exercise that may prove nearly impossible. As one jurist wrote, “Why a man without title who as an honest man admits that he wanted only what was his, and occupied in the belief that the land was his, should be worse off than the willful wrongdoer who enters, and occupies in order to get title by adverse possession is not explained in these cases.” [viii]
Continuity of Possession
The use of the property must be consistent with the normal use expected of an owner with clear title. For example, if the tract of land would normally be used for just a few months during the summer for camping and recreation, then the adverse possessor would not be required to do more. If, however, the lot were a more urban one where one might expect the owner to build a house and occupy it, the adverse possessor would be expected to do like wise. In this case, the adverse possessor would be able to leave the property to go to work, go shopping, and even take vacations away from the property. Again, this is in keeping with the concept that the adverse possessor uses the property in a manner consistent with that of a titled owner. An example of this concept is found in Howard v. Kunto[ix] in which the summer occupancy of a seasonal-use beach house was held sufficient for continuity purposes. Roche v. Town of Fairfield[x] also discusses the nature of use made by the claimant.
Some states allow continuity to be “tacked”. Tacking is the process of maintaining continuity through transfer of the property to another by oral transfer, written deed or agreement, bequest or inheritance. Note that this is one of the few cases where the Statute of Frauds does not void oral transfer of property. For example, P1 is the adverse possession of a tract known as Blackwood, held in title by O. P1 transfers Blackwood to P2. P2 continues the adverse possession of Blackwood. The time of adverse possession by P1 is added to, or tacked to the time of adverse possession by P2. The importance of this will become apparent in discussion the next element of adverse possession.
In order for tacking to be allowed, privity between parties must exist. Privity, in this context, simply means that the two parties have some direct relationship, whether familial or economic.
In the case where P2 runs P1 off the land by any means, the period of adverse possession maintained by P1 cannot be tacked with the period of adverse possession maintained by P2.
Interestingly, tacking works the other way, too. For example, P begins adverse possession of Greenwood, held in title by O1. O1 transfers Greenwood to O2. P tacks the period of adverse possession against O1 to the period of adverse possession against O2 to calculate the length of adverse possession. There can even be cases of tacking on both sides; the possessors may tack and the titled owners may tack.
Statutory Period:
Most states have statutory periods for the length of adverse possession before the titled owner can no longer bring successful suit of ejectment against the adverse possessor. The length of the periods and conditions varies greatly between states. In general, the western states have shorter periods than the eastern states. This is due to the “wilder” nature of clear title to the land, the speed with which the land was claimed and developed and the lobbying efforts of the railroads. This worked to produce shorter time requirements for adverse possession in order to quiet title as quickly as possible and return to some level of normal decorum.
In some states, the period is diminished if the adverse possessor pays the taxes or if the adverse possessor has “color of title” to the property being possessed. The color of title is often statutorily defined but usually amounts to the existence of a written instrument even though it is defective. For example, where there is an overlap of two deeds which appear to be of equal value, adverse possession may well be the easiest way to settle the disputed boundary.
Many states also impose extra time in certain cases during which, although the adverse possession may exist, the time is not counted toward the period of adverse possession. These cases are often referred to as “disabilities”. These are disabilities on the part of the titled owner, not the adverse possessor. The disabilities generally cannot be tacked and, in most cases, they must exist at the time the adverse possession began. If two such disabilities exist at the time the adverse possession begins, whichever disability lasts the longest will usually control. Many states that have enacted such disability statutes have also set a maximum period for the disabilities.
The disability statutes often cover owners who have not reached majority (i.e. the 8-year-old who inherits Whitewood Estate upon the death of his parents) and mental incapacity of the titled owner. Some states include incarceration, serving in the armed forces and, occasionally, just being outside the jurisdiction. For example, the owner of Builtmore, who is a land surveyor on a long-term contract with a foreign government, could not reasonably be expected to keep and eye on her property without undue expense or travel.
Some states also add a grace period to the end of the disability with the idea that it would take some time for the titled owner to regain full control of all his holdings after being incapacitated for a lengthy period.
Additional Elements:
Some states, such as California, require the payment of taxes on the affected property. In states that do not require tax payment, however, such payment is often admissible evidence of sufficient notice of intent to possess the property.
Conclusion
Adverse possession can be a valuable tool in quieting title to disputed lands. It can be an instrument that protects legitimate titles to land from spurious and dated claims. It can be of great value to those who purchase property at auctions. Although the concept of adverse possession has been with us for more than 5000 years, it is as useful today as it was in Hammurabi’s time. Once one sees the value of the action, one hopes that adverse possession will stay with us for some time to come.
Though somewhat daunting at first, the concepts surrounding adverse possession and the statutes and case law governing its implementation are worth study. The boundaryman would do well by his or her clients to spend time reading the statutes of the states in which they practice. Keeping current with case law can be as simple as a monthly search on Lexis[xi] or FindLaw[xii]. The effort is certainly worthwhile and of no small importance to one’s clients who face lawsuits based on claims of adverse possession.
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[i] Code of Hammurabi, c. 1780 BCE, translated by L. W. King,
[ii] 3 Edw. I, c. 39 (1275).
[iii] 21 Jam. I, ch, 6 (1623).
[iv] the principle under which the eldest son inherits the fathers estate.
[v] 32 Hen. VIII, ch. 1 (1540).
[vi] 12 Car. II, ch. 24 (1660).
[vii] The Path of the Law, 10 Harv. L. Rev. 457, 477 (1897).
[viii] 3 A.L.P. 790.
[ix] 477 P.2d 210 (Ct. App. Wash. 1970).
[x] 186 Conn. 490 (1982)
[xi] , a fee for service website with extensive search engines for locating appellate court decisions.
[xii] , a website with a search engine useful to locate legislation, Attorneys General Opinions and appellate court decisions. The documents can be viewed on line and hard copies can be ordered for a nominal fee.
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