Law of Adverse Possession

Adverse possession is an aspect of real estate law. The fundamental principle of adverse possession relates to one party or individual taking possession of another party or individual's land or property for an extended period of time with the intent to legally claim title to that property. Put simply, it is a way to obtain title through the use of another person's land.

Jurisdictional Considerations

Adverse possession originates from codes of common law, as does most legislation practiced and formed within the U.S. Similar to most aspects of real estate law, different jurisdictions may apply this law and the statutes related to adverse possession differently. Most notable in this regard is the state of Louisiana. Louisiana does support the legal statute of adverse possession. However, since state laws are based upon Napoleonic code, considerations will need to be made in regard to other statutes and regulations that interact with adverse possession.

Parameters

In order for legal title to be transferred between parties through adverse possession, a number of requisites must be met. First, the possession must be actual, meaning the non-owning party must act as if they actually owned the property. Second, acts of possession have to be open and obvious. Third, acts of ownership must be exclusive; the non-owner seeking title can't be one of many who make use of the property. Fourth, the acts must be hostile. This means that the non-owner can't have the expressed permission of the owner to use the property. Last, the use of the property must also be continuous and uninterrupted for the entirety of whatever statutory period deemed acceptable within the jurisdiction where the property is located.

Defenses

As suggested above, if the owner of the land gives permission of use to the non-owner, then the usage is not hostile and adverse possession does not apply. If there are many individuals using the land, no one party can claim adverse possession. However, if the entire group consolidated as one party of interest, adverse possession could then be claimed.

If the acts of ownership were insufficient to suggest an ownership claim, this might be a defense to adverse possession. For example, if a rental property was maintained (i.e., grass cut, regularly painted and secured) by a non-owner, this may not be sufficient to claim adverse possession. However, if the non-owner also paid taxes on the property, placed tenants in the property and maintained insurance on the property, this would likely constitute a good basis of an adverse possession claim.

Exceptions

Public lands and any government property are federally excluded from adverse possession claims. This includes any parks, buildings and reserves owned or possessed at any governmental level.

Time Frame

Claims of adverse possession require that the claimant act within the previously discussed parameters for a specific length of time. Depending on the jurisdiction, this could range from two to 10 years for individuals. For groups and organizations, the time frame could extend to 20 years or more.

References

• Real Estate Law
• State Adverse Possession Laws