Adverse Possession

The doctrine by which a person who occupies land they do not own, openly and continuously for the period the state sets, becomes its owner - the elements, the "color of title" and tax-payment variations, and why it decides fence and driveway disputes far more often than it transfers whole parcels.

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What it means

Adverse possession converts long possession into ownership. A person who takes possession of another's land and holds it for the statutory period without the owner's permission acquires title to it, and the former owner's right to recover the land is extinguished. The doctrine rests on the statute of limitations for actions to recover land: once the owner's time to sue the possessor has run, the possessor's title is as good as any. Every state recognizes it, and the period, which each state sets by statute, varies widely.

The possession must be actual - using the land as an owner would; open and notorious - visible enough that a reasonably attentive owner would notice; exclusive - not shared with the owner or the public; hostile or adverse - without permission, which in most states is judged by the possessor's conduct rather than their state of mind, so a neighbor who honestly believes the strip is theirs qualifies; and continuous for the whole period, though successive possessors may add their periods together. Many states shorten the period or relax the elements for a possessor holding under "color of title" - a defective deed that purports to convey the land - and a number require that the possessor also have paid the property taxes. Land owned by the government cannot be adversely possessed, and a co-owner's possession is presumed permissive unless they clearly repudiate the others' rights.

In practice the doctrine is invoked over boundary strips: a fence, hedge, driveway, garden or garage that has sat a few feet over the line for decades. A related doctrine, the prescriptive easement, gives a right to continue using another's land - a path, a driveway - on the same elements minus exclusivity, without transferring ownership. A claim is asserted in a quiet-title action and, once established, is confirmed by a judgment recorded in the land records; until then the possessor holds a title that no title company will insure and no buyer can be sure of.

Where this comes from

When people hire a lawyer for this

The owner's side is time-critical in the opposite direction from most claims: an owner who discovers a neighbor's encroachment can stop the clock by granting written permission, by demanding removal, or by suing, and the longer nothing is done the closer the neighbor is to owning the strip. The possessor's side needs evidence of every element across the whole period - photographs, aerial images, tax records, testimony of prior owners - and a lawyer to bring the quiet-title action that turns possession into an insurable title. Either party should get a survey before anything else, because a surprising number of these disputes turn out to be about where the line actually is.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Entries on the same subject:

• Boundary Line DisputeHow property lines are established, why fences and old surveys so often disagree with the deed, the doctrines that can move a boundary, and how disputes are resolved.
• EasementA legal right to use someone else's land for a defined purpose, without owning it.
• Private Nuisance (Neighbor Disputes)When a neighbor's noise, smoke, odors, light, water or trees become a legal wrong, how courts weigh the harm, and what remedies are available.

Other entries in the same area of law, each written from the same primary sources.

• Breaking a LeaseWhat a tenant owes when leaving before a fixed-term lease ends, the landlord's duty in most states to re-rent, and the situations in which the law lets a tenant end a lease early.
• Construction Defect ClaimsAn owner's or association's claim against a builder, developer, contractor or design professional for defects in how a home or building was designed or built.
• Deed Types: Warranty, Special Warranty and QuitclaimWhat the different forms of deed promise about the title they convey - the general warranty deed's guarantee against every defect, the special warranty deed's narrower one, and the quitclaim deed's none - and what each is used for.
• Eminent Domain (Condemnation and Just Compensation)The government's power to take private property for public use, which the Constitution allows only with just compensation, and the owner's rights when it does.
• Eviction (Unlawful Detainer)The court process a landlord must use to make a tenant leave - and in most states, the only lawful way to do it.
• Foreclosure (Judicial and Non-Judicial)The process by which a mortgage lender takes and sells a home after default - the court-supervised route some states require and the trustee's sale others permit, the federal servicing rules that must be followed first, the loss-mitigation alternatives, and what the borrower can still owe or reclaim after the sale.
• HOA Covenants and Assessment LiensThe recorded restrictions that bind every owner in a planned community or condominium, the association that enforces them, and the assessment lien that lets it foreclose on a home for unpaid dues - what the documents control, how they are amended and enforced, and the limits the states have placed on association power.
• Homeowners Insurance ClaimHow a property loss claim actually works - what the policy covers, the duties it imposes on you, and where claims most often fail.
• Implied Warranty of HabitabilityA landlord's obligation to keep a rented home fit to live in - one the lease usually cannot sign away.
• Land Use and ZoningThe local rules that decide what can be built where, and the variances, special permits, rezonings and appeals an owner uses when the rules stand in the way.
• Loan Modification and Foreclosure AlternativesThe options a homeowner behind on a mortgage can ask the servicer for - forbearance, repayment plans, loan modification, short sale and deed in lieu - and the federal rules on how servicers must handle the request.
• Mechanic's Lien (Construction Lien)The statutory lien a contractor, subcontractor, supplier or laborer may record against a property for unpaid work or materials - the preliminary notices and filing deadlines that make or break it, why an owner who paid the general contractor can still face a subcontractor's lien, and how the lien is enforced or released.
• Purchase Contract ContingenciesThe conditions in a home-purchase agreement that let a buyer walk away with the deposit - inspection, financing, appraisal, sale of the buyer's current home, title - how each is exercised and waived, and what happens to the earnest money when the deal fails.
• Quiet Title ActionThe lawsuit that asks a court to declare who owns a property and to remove a competing claim from the record - used to clear an old mortgage never released, a break in the chain of title, a tax-sale or adverse-possession claim, or a deed that should never have been recorded.
• Security DepositMoney a tenant leaves with a landlord against damage or unpaid rent - held under state rules that usually require an itemized accounting within a fixed period after move-out.
• Seller Disclosure DutiesWhat a seller of a home must tell a buyer about the property - known material defects, water intrusion, structural and system problems, and under federal law lead-based paint - the state disclosure forms, the "as is" sale, and what a buyer can do when a problem was concealed.
• Title Search and Title InsuranceThe examination of public records that establishes who owns a property and what claims stand against it, and the insurance policy that pays if that examination missed something - who is protected by the lender's policy, who by the owner's, and what neither covers.
• Transfer-on-Death DeedA recorded deed that leaves a house to someone at death while changing nothing during life - available in many states, and not all.

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