Adverse Possession: “Exorcising Property Dispute Demons”
June 20th, 2007 by Rich JacobsonAdverse Possession is one of those terms we learn early on in our real estate career. You’re guaranteed to see it as one of the multiple choice questions on your license exam, along with riparian rights and appurtenances.
It’s always interesting to me how these terms can take on a whole new meaning when, as licensed real estate professionals, we actually encounter them in the real world.
Our ever-helpful Wikipedia defines it this way:
“Adverse possession is the name given to the process by which title to another’s real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner’s rights for a specified period of time.”
In other words, Adverse possession is a way that Property Owner Jones can take Property Owner Smith’s property, or a portion of Smith’s property, without paying for it.
What a deal, Lucille! Where do I sign up, right?
Well, there’s a catch. (Isn’t there always?)
Adverse possession requires that three components exist before possession/ownership of the property can occur:
- physical (actual, visible, notorious, exclusive, open)
- mental (hostile)
- temporal (continuous)
Now I don’t know about you, but I’ve had a few neighbors who were ‘notorious‘ and ‘hostile,’ but that’s not really what is meant here.
From ExpertLaw.com:
Open & Notorious- You engage in acts of possession consistent with the subject property in a manner which was capable of being seen. (This does not mean that you must have been observed in your acts of ownership but, had the actual owner or members of the public been in a position to see you, your acts must have been observable). You need not use the property in a manner that exceeds that which would be expected of the actual owner – that is, it may be possible to claim adverse possession of a vacation property on the basis of use only during the vacation season, or to claim adverse possession of a vacant parcel of land by engaging in typical acts of maintenance for the parcel.
Hostile – Hostility exists where a person possesses the land of another intending to hold to a particular recognizable boundary regardless of the true boundary line. That is, possession is “hostile” to the title owner’s interest in the property. You cannot claim “adverse possession” if you are engaged in the permissive use of somebody else’s land.
Continuous & Uninterrupted – All components of adverse possession must be met at all times through the statutory period in order for a claim to be successful. It may be possible to claim adverse possession even if there is a transfer of ownership through the principle of “tacking.” For example, a previous owner’s 12 years of adverse possession can be “tacked” to the present owner’s eight years, for a cumulative twenty years of adverse possession
In basic laymen’s terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Some states allow accidental adverse possession as might possibly occur with a surveying error. Generally though, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. The possession time-frame may vary from state to state. Here in Washington, the duration of such possession is 7 years. The person claiming title by adverse possession must also pay taxes and assessments on real estate during the time of adverse possession.
If you want to read a rather lengthy, yet absolutely amazing account of attempted Adverse possession here in the Seattle WA area, go here (opens into a separate window)
Another quality SoundBiteBlog article by Sparky
Update: there’s a bill in the house, HB 1479, which would put an end to adverse possession (aka legalized land theft). However, Rep. Jamie Pedersen is the bottleneck and prefers the status quo of letting neighbors steal others property. It is time for this ancient, unfair and unnecessary law to end. The only way to eliminate adverse possession is by changing the law, which is why HB 1479 needs to pass. Tell your local Rep. that you support HB 1479.
just another way to steal from someone–scary to think someone can just move right into a vacation home and claim it
sad world we live in
People and greed.. a never ending saga..
Stopped by because of the blog tour. Not really needed though as I’ve had you in my feed reader forever. Great job here as always!
We had a group of protesters trying to take adverse possession of a supreme court justice’s lake front home…it was pretty funny watching them trying to make their very valid point.
Great information… We have something similiar in MD. We call it “Squatter’s Rights” but basically the same components of possession must apply.
I’m definitely adverse to possessing a home at this juncture.