What Constitutes Adverse Possession?

Copyright (c) 2008 Parmdeep Vadesha

Adverse land possession is a common law practice wherein someone acquires title to another person's land after occupying such property for a number of years without challenge or permission from the true owner.

The theory on adverse land possession is based on some deeply-rooted morality. The main basis on this law is to compel landowners to keep a vigilant eye on their property, especially those that are far away. What the law on adverse possession punishes are those who neglect to do what should be done to maintain his property, thus causing damage to another. Adverse possession is based on the doctrine of estoppel by laches, or failing to act on one's rights to the prejudice of another. This law does not seek to unduly reward a person who fails to do his duty to protect his property, thus allowing another to stake a claim over it.

Adverse land possession is completed when the following criteria are present in the scenario:

1. Actual possession. To be considered as adverse possession, the adverse possessor, or disseisor, must physically use the land and alter its current state. Actions of this kind include planting or harvesting crops, keeping livestock and constructing buildings or other improvements. Paying taxes does not amount to actual possession, although it may be an indicator of a claim of right.

2. Open and notorious occupation. The disseisor's use of the property must be visible and apparent to all people, including the true owner. His occupation must be of a character that is not covert, such that the true owner cannot deny knowing such fact. Open and notorious occupation may be evidenced by the construction of fences, buildings, posted signs or the presence of animals or crops.

3. Exclusive and hostile. The disseisor occupies the land to the exclusion of everyone else, including the true owner. Furthermore, the disseisor occupies the land without the property owner's consent or permission and against the true owner's rights.

4. Continuous. The disseisor must show that he has occupied the land continuously for a specific period of time. The statute of limitation begins to run from the time adverse possession started to take place, not from the time the true owner was dispossessed of his land or left his property untended. The courts have ruled that occasional cutting of timber or occupation at intervals do not satisfy the continuity requirement. Moreover, if the true owner has ejected the disseisor and after some time, the adverse possessor returns to the land and occupies it, he cannot count the time prior to his ejection, since his occupation has been disrupted.

In England and Wales, the law on adverse possession used to be governed by section 15 of the Limitation Act 1980. Under the old law, the limitation period, meaning the time that the land must be continuously occupied, is twelve years. After which, the title of the previous owner is automatically extinguished and transferred to the adverse possessor. The adverse possessor then becomes the true owner of the land.

The old law, based on common law and statutory provisions, has been largely criticised for not giving the true property owner his day in court. In 2002, the Land Registration Act was enacted. Under the new law, the adverse possessor needs to apply to be a registered owner of the property after ten years of continuous occupation. The transfer of land title is no longer automatic. The Land Registry then gives notice to the paper owner who has 65 days to object. If the objection is granted, the true owner will have two years to evict the adverse possessor and regain his property. This law is held by many to be better, since a land owner's rights can no longer be removed without his consent.