Claiming title by Adverse Possession

Adverse possession is a way that a claimant can establish title to real estate. Essentially, adverse possession is a nonpermissive use of land with a claim of right. In order to acquire title by adverse possession, the claimant's possession has to be actual, open and notorious, hostile to the interests of the owner, and for a statutory period of years. Under some circumstances, open and notorious possession may be constructive, rather than actual.

Actual, Open and Notorious Possession

The open-and-notorious element of adverse possession requires that the claimant actually possess the property in a way that the true owner would become aware of that possession and act to protect his interests through an action in ejectment. A squatter who hides whenever the owner appears does not possess the property openly. Evidence of actual, open possession will vary form case to case, but can include the construction of a house or a fence on the property, the raising of crops, and the posting of signs to keep out. Actual, open possession provides visible notice to the owner that the claimant is challenging the owner's right to the land's title.

Constructive Adverse Possession

Constructive adverse possession can arise when a claimant does not possess the land itself but claims title by having paid taxes on the property. This may provide a valid claim to title because the payment of taxes creates a public record, notice of which is charged to the owner.

Hostile to the Owner

The hostile-to-the-owner element means that the claimant's possession is without the owner's permission. This means that the claimant acts like he or she is the owner, that his or her actions are not in the owner's interest, and that his or her acts exclude the interests or entitlements that others may have as owners of the property. For example, a claimant who openly lives on the property without paying rent to the true owner satisfies the element of hostility.

Period of Years

The period-of-years requirement is set by statute. The period may vary from state to state. A claimant's actual, open and notorious possession of the property begins the running of the statutory time period. In general, however, the nonpermissive use of the land has to be continuous during the relevant statutory period, although the claimant does not always have to be physically present on the claimed land.

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