Adverse Possession Defined

Claiming the right to enjoy real property when the enjoyment of that property is opposed to another person’s claim and is continuous, exclusive, hostile, open and notorious.” [1]

To prevail in an adverse possession claim, the claimant must satisfy the following elements:

Actual possession – The claimant must take actual possession of the land. [2]

  • The claimant must use the land in the same manner that another reasonable owner would. [3] For instance, the Joe adversely possessed Horse Land Ranch which is a parcel of land which a reasonable owner would use for the grazing of horses and cattle.
  • However, Joe decided to build high rise condos on the land. This action is in conflict with the actual possession element in that even though Joe took actual possession of the land, his use of the land fell outside of the scope of use other reasonable land owners would consider.

The possession must be exclusive – Because Joe is attempting to adversely possess Horse Land Ranch, he cannot share the term of possession with anyone. Not even the actual owner. [4]

  • For instance, While Joe is attempting to adversely possess the ranch, the actual owner of the land returns to the ranch house.
  • When the owner does this, Joe’s possession of the ranch is shared and not exclusive. Because of this, Joe’s adverse possession claim for the entire parcel would not prevail.
  • However, if Joe were to adversely possess a portion of the entire parcel and he was the exclusive possessor, he could argue an adverse possession claim for the part of the ranch which he had exclusive possession of.

The possession must be open and notorious – In our scenario, for Joe to satisfy this element, Joe must possess the ranch in an open and notorious fashion.

  • The satisfaction of this element can be accomplished when Joe does not hide his possession of the ranch.
  • Rather, if the owner or any other person were to visit the ranch, the fact that Joe occupies the land and is laying claim to the land must be evident. Joe can show evidence of this by performing the maintenance and upkeep of the property.
  • He can also do this by posting no trespass signs or paying the property taxes. [5]

The possession must be adverse or hostile – Thinking about adverse and hostile element, it seems logical to state that the hostile and adverse acts of the claimant are those that are detrimental to the retention of title by the owner.

  • Spranking describes the “majority view” where it is held that the claimant’s subjective belief about who own’s the land is irrelevant. [6]
  • Instead, Spranking tells us that under the majority view, it is only the fact that the claimant uses the land as a reasonable owner would and without the permission of the owner is enough to satisfy this element. [7]

The possession must be continuous and for the statutory period – There is a statutory period of which the claimant must maintain continuous possession. [8]

  • However, to satisfy this element, the claimant does not have to maintain a continuous physical presence on the property.
  • Instead the claimant can possess the property according to the manner in which the property is used.
  • For instance, if this is a ski lodge bungalow where access to the bungalow is seasonal, as long as the claimant, without fail, adversely possesses the bungalow during all periods where seasonal access is available, and this possession meets or exceeds the statutory period, this element is satisfied. [9]

Adverse possession claims have affected property owners in the real estate bubble crises. In considering the impact these claims have on property owners, I look at adverse possession claims involving foreclosed properties.  In Broward County, Florida one particular claimant attempted to adversely possess a total of “48 properties in Broward, including a $1 million house in Coral Springs.” [10]  In this particular case the claimant, Mr. Ellis formed a company called Helping Hands Properties Inc., to facilitate the adverse possessions. Mr. Ellis also described to police how he was able to rent out the properties at exceptionally low prices due to acquiring the adverse possession properties with minimal expense. [11] Based on this case alone, we can see how adverse possession cases burden the property owner (the bank) with additional legal costs to fight and evict the claimant. We can also see that the property owners would incur the additional cost to repair and secure these properties from those attempting to adversely possess them.

References

[1] Garner, Bryan A. Blacks Law Dictionary, 9th. West Pub. Co., 62 (2009).

[2] John G. Sprankling, Understanding property law 438 (2000).[3] Id.

[4] Id. at 439.[5] Id. at 440.

[6] Id. at 442.

[7] Id.[8] Id. at 444.

[9] Id. at 444.

[10] Squatters Taking Over Abandoned Homes in Florida, Insurance Journal (2010), https://www.insurancejournal.com/news/southeast/2010/06/18/110852.htm (last visited Apr 1, 2018).

[11] Id.

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