Real Property: Adverse Possession

The idea of adverse possession strikes some law students as a bit odd when first encountering it. The fact that someone should be able to gain title to property without having purchased that property is generally one that seems at odds with how many view the law. Adverse possession, though, simply results from the operation of the statute of limitations for trespass. In other words, the elements, as outlined below, ensure that an owner of property, within the statutory period, takes action to eject a possessor who claims adversely to the owner, because if the owner fails to do so the title vests in the adverse possessor.

The requirements are very strict for title to vest in an adverse possessor. In an essay, you'll want to analyze each one, and on the MBE, pay careful attention to each element, as the answer will often depend upon any one element in particular. Because adverse possession is based on the running of the statute of limitations for trespass, an initial consideration is when the statute begins to run. The statute of limitations begins to run when the true owner of the property can first bring suit. In other words, after the adverse possessor has trespassed upon the property.

The trespass, however, has to meet certain requirements if the statute of limitations is to begin to run, forcing the owner to risk losing title to the property if he fails to bring suit. Those elements are outlined below:

Actual and Exclusive Possession: An adverse possessor will only gain title to land that is actually possessed. Further that possession must be exclusive in the sense that the adverse possessor is not sharing the land with the owner, or with the public. However, note that more than one person can adversely possess property. So, if x and y adversely possess the land owned by z, then, assuming all requirements have been satisfied, x and y can take title (as tenants in common), by adverse possession.

Open and Notorious: Possession is open and notorious when it is the kind of use the owner would make of the land. The idea here is that the adverse possessor's use must put the true owner on notice that a trespass has taken place, so that it's fair to require the owner to bring a suit or risk losing title to the land.

Hostile: This requirement is satisfied if the possessor enters without the owner's permission. Be careful not to concern yourself with whether the adverse possessor believed he owned the property; that consideration is irrelevant. What's important is whether the adverse possessor lacked permission by the true owner to enter the land.

Continuous: The adverse possession must be continuous throughout the statutory period. The requirement here is that the adverse possession is of the type that the true owner of the property would make. Though it has to be continuous, it need not be constant. Also note, and this is heavily tested, that there need not be continuous possession by the same person; an adverse possessor can tack his own possession onto the periods of adverse possession of his predecessors, but privity is required.

A few final points: As discussed above, an initial consideration is the exact moment that the statute of limitations begins to run on a cause of action for trespass. Generally, that moment occurs when the trespass occurs. The analysis changes, however, if the true owner of the property is under some disability to sue when the cause of action first accrued (for example, if the true owner is a minor, or is imprisoned, or has been adjudicated insane). In such a situation, the statute begins to run once that disability is no longer in effect. In addition, the statute of limitations does not begin to run against the holder of a future interest, until that interest becomes possessory. Finally, note that title to government-owned land cannot be acquired by adverse possession.