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Wednesday, January 29, 2014

Adverse Possession – Squatters Title

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 proportion of the land before the actual and open elements of the statute can be satisfied.

Receipt of Rent

The statute states that a person is eligible to make a claim for ownership based on adverse possession if that person ‘has been in possession of the land or in receipt of the profits of such land.’ Therefore, you can make a claim to be the true owner of the land based on adverse possession if you can demonstrate that you are receiving rent (or profits) on the land in question. You do not have to build a house on the land before making a claim for continuous use of the land. Constructive use of the land in the form of collecting rent satisfies the factual possession element of the statute.

True Owners Awareness of Continuous Period

There is no requirement that the true owner not be aware of the squatters possession of the land for the continuous period to be effective. All that matters is that the squatter be in possession of the land with the requisite intent for the predetermined continuous period. There would have to be an active and deliberate attempt to assert ownership by the true owner to stop the continuous period from accruing in length. As a result, the mere communication of an intention to reclaim ownership would not be sufficient to end the measurement of a continuous period. The intention to act as owner must be accompanied by acts which demonstrate a resumed physical control of the land.

How Long is the Continuous Period?

The statute requires 12 years of continuous possession if the land was private, 60 years of continuous possession if the land was government property, 30 years of continuous possession if the owner was under disability, and 6 years of continuous possession if the owner has recovered from a prior disability. A period is considered continuous for as long as a third party (non-owner) is in possession of the land while independently meeting the requirements for adverse possession. The effect of this rule is that the continuous periods can be tacked from one adverse possessor to another adverse possessor until the requisite statutory period is met.

Continuous Period Marked by Discontinued Use

Discontinued use of land by an owner serves as a starting point for when the continuous period can be said to start for the adverse possessor. Outright abandonment does not have to take place in order for you to assert a claim for adverse possession. And the date of the death of an owner operates as a common form of discontinued use thereby denoting a starting point for an asserted continuous period.  

Application for Title to Registrar

You are eligible to apply for title to the Registrar if you believe you have acquired a title by adverse possession. The application has specific form guidelines and must be accompanied by the following: (1) evidence that supports the claim for adverse possession, (2) an affidavit that sets forth particulars of the claim, (3) fees, and (4) a certificate from an officer stating that all quit rents and property tax affecting the land have been paid up to the date of the application. Completed applications are submitted to Referees for evaluation and to make a determination to provisionally approve the claim for the registration of title as an absolute title. The Referee gives notice of the provisional approval to the Registrar who then publishes this finding in at least one local newspaper. Once you are designated owner of the property based on a claim of adverse possession you is an absolute bar on competing claims of ownership. You are the lawful owner of the property provided the title was not gained through avenues such as fraud and other limited circumstances.

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