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What is Adverse Possession?

Adverse possession is a way that an individual can legally take property owned by another individual without paying for it. The requirements for adversely possessing property varies if the previous land owner is a private individual, government entity, or a person with disability but include continuous and open use of the other persons land for a specified period years on the property in question. The basic idea is that you will not have ownership of the property by title but will have established that you are the de facto owner by how you use the property. In effect, adverse possession is a process by which land can change ownership without a formal grant of ownership by the previous owner to the current owner.

Good Faith Intention of Person in Possession of the Land

There is no good faith requirement of a person that adversely possesses property. All that is required is that for a continuous period of predetermined years the person in possession of the land intends to possess the land as its owner and acts in a manner that demonstrates to the community that he is the owner of the land. Typically, the intention requirement is subjective but the possession requirement is objective and is achieved when a person acts as though he is owner of the land by actual and open use of the land. And the actual and open requirement simply means that it would be clear to other members in the community that you are the true owner of the land. It does not mean that you have to proactively communicate to others that you are the true owner of the land. Again, it is only a subjective intention to possess that you are required to maintain. Thus, it is the perception of actual ownership that matters.

Permission to Use Land

In order to be awarded ownership of the land by adverse possession you do not have to have permission to occupy the land. In effect, you do not have to have any lawful relationship with the prior owner such as an employment arrangement that consents use of land. This supports the public policy rationale for adverse possession which is to promote the efficient use and development of land. It would not be an efficient use of land if the previous owner abandons his land for any period of time or has to grant you permission to use land that he is otherwise not using. However, it should be noted that a licensee cannot obtain title by adverse possession as long as his license has not been revoked.

Restrictions on Type of Possession

There is no specific type of land use that a person must engage in to make claim of ownership via adverse possession. This also supports the public policy rationale of promoting the most efficient use of land. If the land appears to be abandoned by the previous owner, any use of the land will maximize efficiency. Whether you are building a house or cultivating crops on the land there is no preferred method of displaying open and actual use of the land. What matters is that you demonstrate physical custody and control which is termed factual possession.

Extent of Use of Land

There is no requirement that the owner seeking title to land by adverse possession use all of the land in question. The only restriction is that the person be in exclusive control of the land. For example, you can build a house on a portion of the land and this will constitute open and actual possession of the land even if you do not actively use the land in its entirety. The only requirement that will be at issue will be whether the use of the house on the portion of the land was for a continuous and exclusive period that satisfies the statute. There may be some confusion that actual and open possession of the land necessitates use of all of the land. This is not case. Actual and open possession for a continuous period of time does not require a fixed propo