Adverse Possession

Adverse Possession

By Yadire Mendoza

Adverse possession was formalized in English common law in 1632 in the Statute of Limitations. The doctrine of adverse possession is described as a method in which the occupier of a land who is not the true owner acquires title to the land without consent from or compensation to the ‘true’ owner. Under this rule it is specified that after certain time frame, termed as statute of limitations, the actual owner of the property cannot raise an action to remove the possessor from the land. The result of adverse possession is that it places a statute of limitations on the actual property owner from bringing an action against a possessor. After a certain period of time a person, whether he had acquired the possession of property rightfully or wrongfully is to be protected from actions to recover possession of the property.

In order for adverse possession to occur there are five elements the claimant must establish in relation to the property in order to acquire title:

1.) Notorious occupation of the property

2.) Hostility to the owner

3.) Occupation under a claim of right or color of title

4.) Continuous occupation for five years

5.) Payment of all taxes levied against the property

The following case is an example of how adverse possession was not possible. In Gilardi v. Hallam (1981) 120 C.A. 3d647, two owners were mistaken as to their common boundaries. One of the owners used 15 feet of the neighbor’s property as his own, thinking it was his, in which he planted trees and shrubs and laid a sidewalk. The use existed for over five years, but because the taxes were not paid, adverse possession was not possible in this case.

States have a social interest in seeing land used productively. Adverse possession law rewards those who use the land, whether to live on, to farm, or for other reasons. The U.S. government respected this interest in land use as early as 1784, when it passed the Land Ordinance, and again in 1862 when it passed the federal Homestead Act. The laws regarding adverse possession honor that sense of "home" by awarding ownership to the person who has occupied the land long enough to make it a home, rather than to the person who merely holds the deed but doesn't use the land.

References:

Bouckaert, Boudewijn, and, Depoorter, Ben W.F. (1999) Adverse Possession - Title Systems

Hansz, Andrew J, and Julian Diaz III. (2010) “Real Estate Analysis: Environments and Activities. Dubuque, Iowa: Kendall Hunt.

Pixie, Alexander. Jan 9, 2011 Suite101: Purposes of Adverse Possession

Ted H. Gordon, JD., MBA California Real Estate Law, 8^th Edition, Cenage Learning