“Possession is 9/10ths the law.” Adverse possession is the theory that embodies this quote. Adverse possession is real property theory that is rationalized on the maximum utilization of land. In simple terms, adverse possession is a way for a trespasser to take title to real property when the trespasser possesses another’s property for an extended period of time and rewards the possessor to take good title away from the true owner as a premises liability lawyer has seen happen.
A trespasser and later extended possessor who wants to take good title to the land must establish the following five (5) elements: (1) actual possession; (2) open, notorious, and visible possession; (3) the trespassing must be continuous; (4) the possession must be at least for the length of the statutory period; and (5) the trespassing must be hostile. In line with the above quote, all of the elements of this theory focus on the characteristics of the possession of the land in question.
The first element, actual possession, requires that the trespasser must make an actual entry onto the land giving the trespasser exclusive possession. In other words, the trespasser must intend to possess the property and exert some degree of control over it. The second element requires that the possession be open, notorious, and visible. This requires that the trespasser’s possession of the land give clear and unequivocal notice to the true owner or his agent that the land owner’s rights are being invaded, i.e., the occupation of the land cannot be hidden. In other words, the second element requires that a reasonable person knows, or should have known, that there was a trespasser on the land. Third, the trespassing and occupation on the land must be continuous. This does not mean that the trespasser must be on the land all day of every day, but it does mean that the possession of the land is more than merely sporadic or occasional.
The fourth and fifth elements are arguably the most important. The fourth element requires that the possession of the land must be at least for the length of the statutory period. Each state has an adverse possession statute, but the relevant statutory time periods differ greater. For example, Nevada’s adverse possession only requires an occupation of five (5) years whereas, Wisconsin requires an occupation of twenty (20) years. Finally, the fifth element requires that the trespassing must be hostile. Generally, this element is satisfied if the adverse possessor does not have the right to be there. Just as different states vary and the statute of limitations element, states also vary on the hostility element. While some states require a showing of intent to trespass on the land, other states do not. In other words, some states require that the adverse possessor reasonably and objectively intend to treat the land as his or her own, while others do not.
While commonly confined to the real property ownership context, adverse possession can be applied in the rental property and personal property contexts as well. With rental property, the same elements are required and if satisfied, all rights that the original owner had of the rental property would transfer to the adverse possessor. In the personal property context, the adverse possession is treated exactly the same as the real property context. The caveat with personal property is that, to meet the open and notorious element, the possession of that personal property must establish clear and unequivocal evidence thereof. If you are having an issue like this, contact an attorney near you for help.
Thanks to Eglet Adams Eglet Ham Henriod for their insight on adverse possession.