Adverse possession transfers title from a record owner to a trespasser who has occupied the land openly for long enough. It looks like a reward for wrongdoing, but the justifications are practical: land should be used, stale claims should not surface decades later, and long settled expectations should be protected. The possessor who satisfies every element gains title by operation of law, and can bring an action to quiet title in his own name.
Elements
- Actual possession. Use of the land in the way an ordinary owner of that kind of land would use it.
- Open and notorious. Visible enough that a reasonably attentive owner would notice the occupation.
- Exclusive. Not shared with the true owner or the general public.
- Hostile or adverse. Without the owner's permission. States differ on whether the possessor's state of mind matters: most treat it objectively, some require a good faith belief of ownership, and a few require deliberate intent to claim.
- Continuous for the statutory period. Continuity is measured by the normal use of that type of land, so seasonal use of a summer property can qualify.
- Tacking. Successive possessors may add their periods together where they are connected by privity of estate.
- Tolling. The clock may pause where the true owner was under a disability such as minority or incapacity when the possession began.
Leading cases
- Van Valkenburgh v. Lutz: a claim failed where the use was neither sufficiently substantial nor accompanied by the required claim of title over the whole parcel.
- Mannillo v. Gorski: a mistaken encroachment can still be hostile, since a possessor's honest belief does not defeat the claim, but a minor encroachment is not open and notorious unless the owner actually knows of it.
- Howard v. Kunto: continuity is judged by the ordinary use of the property, and successive occupants in privity may tack their periods of possession.
Where students go wrong
The first mistake is treating hostile as meaning angry or deliberate. In most states it simply means without permission, and a possessor who had the owner's consent can never satisfy it.
The second is applying a single state of mind rule. Jurisdictions split three ways, and identifying which approach applies changes the outcome for the innocent mistaken possessor.
The third is ignoring tacking and tolling. The clock is rarely a simple count from first entry, and those two doctrines are where the exam points sit.
FAQ
How long does adverse possession take?
It depends entirely on the state statute, which commonly runs from five to twenty years, and shorter periods sometimes apply where the possessor has color of title and pays taxes.
What is color of title?
A defective written instrument that appears to convey the land. It can shorten the statutory period and can extend possession to the whole parcel described rather than only the part occupied.
Can you adversely possess government land?
Generally no. Public land is usually protected by statute or by the principle that time does not run against the sovereign.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.