• David Manes

Adverse possession: do not sleep on your land, or you may lose it.

Imagine you have a large tract of land, a few acres. You know the boundaries, but you can’t see them all from your house and your borders bump against other people’s borders. Now imagine your neighbor put a shed up on your land and started to use it to park his tractor trailer. You would never think that you could lose that parcel of land but, in fact, you can. In every American jurisdiction there is a law known as adverse possession that allows a person to take title to land from another owner if they use it in a certain way. Let’s look at the law of adverse possession and how you can protect against it.

Adverse possession defined

Adverse possession is a process through which a person who uses someone else’s property for a statutorily determined period of time becomes the owner of the property. In order to take by adverse possession a user of land must meet certain elements of the law that are as follows:

The use of the land must be

  1. Continuous: for the statutorily prescribed period of time (generally 21 years)

  2. Actual

  3. Open and Notorious

  4. Exclusive

  5. Hostile

Continuous for the statutory period

The person’s use of the land must be continuous and for the statutory period. Each state has different statutory lengths, but many require 21 years, including Pennsylvania. Continuous in this sense does not mean uninterrupted. The use doesn’t have to be every second or even every day. The person must simply use the property as a normal owner would for the statutorily defined period.

Actual

The adverse possessor must actually use the property in a way that a normal owner would. This does not mean that he live on the property, although oftentimes an adverse possessor does. It simply means that the possession is real. You cannot claim a parcel of land you have never really used.

Open and notorious

The adverse possessor’s use of the property must be so visible and apparent to the true owner so as to give notice that someone may be trying to claim the land. Buildings, structures, fences on the property would all serve as open and notorious declarations.

Exclusive possession

This means that the adverse possessor’s use of the property is free from any use by the true owner. If both the adverse possessor and the true owner share the property, the adverse possessor cannot meet this element.

Hostile

To meet the hostile requirement the adverse possessor’s use must be contradictory to the true owner’s legal rights. Thus, if you have consent to use the land then you have not met this element and the use cannot be hostile.

Conclusion

If you don’t use your land, you may lose it. An adverse possessor can take your land if he meets the requirements of having the possession be continuous, actual, open and notorious, exclusive and hostile.  Additionally, the use must be for the statutorily defined period. So do not sleep on your land, or someone lese might be taking it. For a more detailed discussion contact local counsel.[1]


 

[1] [1] Barlow Burke and Joseph Snoe, Examples and Explanations: Property, 79-87, Aspen Publishers (Third Edition 2008).

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