Adverse Possession

Adverse Possession Rule Statement

In order to acquire title through adverse possession, the adverse possessor must prove: actual entry and exclusive possession that is: open and notorious; adverse and under a claim of right; and continuous for the statute of limitations period for ejectment (at least in a manner appropriate to the circumstances). In most states today, the adverse possessor must pay property taxes.

Adverse

Adverse possession is possession without the owner’s consent. If the two parties have not spoken to each other, it is presumed that no permission was given and, therefore, that the possession is adverse.

Actual entry

The adverse possessor must physically enter the property. He must also actually possess the property by treating the property like a true owner would.

Exclusive possession

The adverse possessor must possess the land exclusive to the owner.

Open and Notorious Possession (General & Lutz)

Generally, possession is open and notorious when a reasonably attentive owner would have noticed that the adverse possessor was possessing the property.

Some states add to the general requirement for open and notorious possession by applying the Lutz test. Under the Lutz test, there are three signs that someone is making home on the land that should have made the owner aware of the adverse possessor’s presence. These three signs are substantial enclosure (did the adverse possessor build on the land?), usual cultivation (is the adverse possessor growing something on the land?), and improvements (did the adverse possessor make any improvements to the land?). The Lutz test generally applies to undeveloped land.

Claim of Right

The adverse possessor must be claiming title to the property. He must be acting with the intent to possess the property like it is his own.

When determining whether an adverse possessor has a claim of right, one of three views is applied, depending on the jurisdiction.

The majority of states apply the objective view, looking to the adverse possessor’s actions, rather than his intent. The objective view asks if it would appear to an objective third-party observer that the adverse possessor is claiming ownership of the property.

Other states apply one of two subjective views— either the good faith view or the bad faith view, looking to the adverse possessor’s intent at the time of entry. States that apply the good faith view require that the adverse possessor is claiming title and that at the time of entry he had a good faith belief that he rightfully owned the property. Conversely, states that apply the bad faith view require that the adverse possessor, at the time of entry, knew that he did not own the property but claimed title anyway.

Continuous Possession

The adverse possessor must continuously possess the land for the required statute of limitations period for ejectment. The possession just has to be continuous in a manner appropriate to the circumstances.