Despite the modern legal practice of perfect ownership in property through

written contracts, adverse possession is still a firmly rooted, if

archaic, common law method for acquiring land.
Consider the following example: You inherit a house from your uncle. Adjacent
to his house is a partial lot. Growing up, you recall your uncle using this
lot on a regular basis. In fact, you and the rest of your family assumed
your uncle owned the lot. After his estate is probated, you decide to move
into the house and continue using the lot as an extension of your property.
Using inheritance money, you decide to put up a nice fence around and a
concrete patio on the lot. Several years pass before your neighbor stops by
to tell you they had their property surveyed and learned they have legal
ownership of the lot.
Do they really? Because of your open and continuous use of the property, your
equitable right of possession may actually have trumped their contractual
right to possession. This equitable right is commonly referred to as
adverse possession.
The term "adverse possession, sometimes referred to as "squatter's
rights," refers to a situation where title to real property is acquired
without compensation by virtue of open and continuous use of the property
in a manner conflicting with the true owner's rights for a specified length
of time. In the example above, though you didnt pay anything extra for
the partial lot, your use of the property conflicted with your neighbors
use of the property for several years. You adversely possessed his property.
Adverse possession evolved as a cure to potential or actual defects in real
estate title by putting a statute of limitations on possible litigation over
these types of title disputes. Without the doctrine of adverse possession,
a landowner could not be secure in the title to his/her land. Long-lost heirs
of any former owner or lien holder could come forward with a legal claim to
the property. Adverse possession places a statute of limitations on this kind
of action, providing property owners more security in their ownership
interest. Essentially, if a true owner does nothing to assert their ownership
interest in a particular piece of property within a certain period of time,
they forfeit the right to do so later.
Adverse possession is based on the doctrine of "laches." Defined as
neglecting to do what should or could have been done to assert a claim or
right for an unreasonable and unjustified time causing disadvantage to
another, laches is a concept that has existed in the common law for hundreds

of years. Laches prevents unreasonable results if a person fails to enforce

his/her property rights within the proper time. In the example above, your
neighbor watched you openly use and improve the partial lot for years without
notifying you of their ownership interest. Because they did nothing to
correct your misunderstanding, they are barred from profiting from your
improvements on the lot. Your neighbors failure to timely defend their
property rights can result in a forfeiture of their interest.
Though adverse possession law varies slightly from state to state, there are
five basic common law requirements you must satisfy to make a claim of adverse
possession:
1. Actual Possession- Having actual, physical control over the property.
This means acting as though you are the owner, and using the property in the
manner in which an owner would have used it.
2. Open and Notorious The use and possession of the land must be so visible
and apparent that it gives notice to the legal owner that someone may make
claim to it. In other words, it must be of such character that it would give
notice to a reasonable person. This requirement can be met by installing
fencing, opening or closing gates to the property, posting signs, growing
crops, erecting buildings, or housing animals. In the partial lot example,
you openly used and developed the lot in such a way that a reasonable neighbor
definitely should have noticed. Secretly occupying another's land does not
give the occupant any legal rights.
3. Exclusive Possession- An adverse possessor cannot occupy the land jointly
with the titled owner or share possession in common with the public. This
does not mean that others must be excluded from the land in order to claim
"exclusive" use, but an adverse possessor must have been the only person to
treat the land in the manner of an owner. In the partial lot example, even
though you may have invited guests over for a party in your newly remodeled
patio area, you were clearly the only person acting like an owner of the
partial lot.
4. Hostile Possession Adverse possession must be hostile to the title
owner's interest in the property. The word hostile in an adverse
possession claim does not mean showing ill will; rather, it means that you
possess the property as an owner and hold it against all other claims to the
land. Accordingly, one cannot claim "adverse possession" if one is engaged
in the permissive use of somebody else's land. If your neighbor permitted
you to use the partial lot for birthday parties or social gatherings, but

still otherwise asserted their interest, your possession would be considered

permissive instead of hostile.
5. Continuous and Uninterrupted - All elements of adverse possession must
be met at all times for a set period of time. This time limit differs from
state-to-state. It may be for as little as five years or as much as 20 or
more. Occasional activity combined with long gaps of inactivity is
insufficient. While the time of possession must be continuous and
uninterrupted, you may still be able to claim adverse possession through the
principle of "tacking," meaning a former owner's years of adverse possession
can be "tacked" onto the present owner's years of possession to comprise a
cumulative period of adverse possession. Using the same uncle/inheritance
example, you would be allowed to tack the time that your uncle used and
possessed the partial lot onto your period of adverse possession to perfect
an equitable interest in the partial lot.
Even though adverse possession is based on common law, most states have
now enacted statutes governing adverse possession claims. As a result, one
or more of the following conditions may also apply in order to your claim:
Color of Title - A claim to title by adverse possession often must be
made under color of title. This means that a claim of a fact that
appears to support a persons claim to title is in some way defective.
Continuing the uncle example from above, a claim made under color of title
would include your neighbors deed not being properly executed, and/or
your separate deed also granting you title to the same partial lot.
Payment of Real Estate Taxes
Good faith
Improvement, cultivation, or enclosure
Most property can be subject to a claim of adverse possession. However, it
should be noted that public land is generally exempt from adverse possession.
The rules for adverse possession vary from state to state so before you give
your neighbor a patio windfall, contact a local property or real estate
attorney to see how the rules of adverse possession apply to your situation.