Adverse possession vs. Trespass

by | Jul 24, 2021 | Language of Real Estate | 0 comments

Adverse possession vs. Trespass

Adverse possession is the acquiring of title to real property owned by someone else by means of open, notorious, hostile and continuous possession for a statutory period of time; whereas trespass is any wrongful, unauthorized invasion of land ownership by a person having no lawful right or title to enter on the property.

Adverse Possession — The acquiring of title to real property owned by someone else by means of open, notorious, hostile and continuous possession for a statutory period of time. The burden to prove title is on the possessor, who must show that four conditions were met: (1) He or she has been in possession under a claim of right. (2) He or she was in actual, open and notorious possession of the premises so as to constitute reasonable notice to the record owner. (3) Possession was both exclusive and hostile to the title of the owner (that is, without the owner’s permission and evidencing an intention to maintain the claim of ownership against all who may contest it). (4) Possession was uninterrupted and continuous for at least the prescriptive period stipulated by state law. In this regard, successive occupation of the premises by persons who are successors in interest (that is, by privity of contract or descent) can be added together to meet the continuous-use requirement. For example, a father adversely occupies a certain parcel of land for four years. Upon his death, his son succeeds to his interest and “tacks on” to his father’s four-year prior possession.

Two words can serve as memory aids: POACH (possession is open, actual, continuous and hostile); CANOE (possession is continuous, actual, notorious, open and exclusive).

The statutory period does not run against any individual under a legal disability (ex.,insanity) or until the individual has a legal cause of action to oust the possessor. For example, an adverse possessor could acquire title against a life tenant but not against the remainderman, who has no right to possession until the prior life estate is terminated.

The main purpose of adverse possession statutes is to ensure the fullest and most productive use of privately owned land. Land has been, is, and will continue to be in short supply. If a landowner makes no attempt to use his or her real estate for a long period of time, it is deemed better for someone who intends to make good use of the property to take title.

Any person who takes title by inheritance or conveyance from the owner takes title subject to the claim of an adverse possessor, because the new titleholder is charged with knowledge of the rights of parties in possession of the property. This condition also applies to purchasers and donees. However, if the owner’s interest was subject to liens and encumbrances at the time an adverse possessor entered into possession, then the adverse possessor is subject to them as well.

One who claims title to property by adverse possession does not have readily marketable title until he or she obtains and records a judicial decree “quieting” the title or obtains a quitclaim deed from the ousted owner. Once this is done, however, the title has equal standing with that of an owner who acquired title by way of a deed.

When all requirements have been met, the owner’s title is extinguished and a new title is created in favor of the adverse possessor. The effective date of the new title, as far as the original owner is concerned, is the first adverse entry. Thus, suits by the former owner based on trespass, profits or rents during the adverse period are barred.

Some states have added a requirement that the adverse possession must be “in good faith.” This means that at the time the claimant gained possession of the property, the claimant must have honestly believed that he or she had some right to the land. Furthermore, this belief must have been based on some fact, such as a deed that would have created good title for the claimant but for the fact that it was improperly executed.

Most states do not require the claimant to have paid taxes on the property for any certain period of time (although in some states a claimant’s paying taxes may shorten the prescriptive period). However, a court might consider that a claimant’s failure to pay taxes is evidence that he or she really did not claim ownership of the property.

Prudent owners of raw land held for future sale or development make periodic inspections of their property to check against adverse possessors. Merely posting No Trespassing signs may not be sufficient to prevent an adverse possessor from acquiring rights to the property. An owner must defend his or her ownership rights and do so within a certain period of time. An owner could stop the adverse possession by a reentry, an action for ejectment or an action to quiet the title.

The courts do not usually allow a claim of adverse possession if owner and claimant have a close family relationship, such as father and son or husband and wife, because in these cases hostile claims are too difficult to prove. Cotenants normally cannot claim adverse possession against each other without an actual and clear ejectment of one cotenant by another.

Prescriptive rights in general are not usually favored by the law, insofar as they cause others to forfeit their rights. There is often a presumption that, when a person has entered into possession of another’s property, such possession was with the owner’s permission and consistent with the true owner’s title.

Generally, one cannot take title to state or federal lands by adverse possession. However, the federal Color of Title Act provides that a claimant who has met all four tests of adverse possession on public land may receive a patent to such land, provided the land does not exceed 160 acres and provided all taxes are paid. The United States, however, reserves the right to all coal and mineral rights to the property. In addition, title to Torrens-registered property usually cannot be taken by adverse possession.

Trespass — Any wrongful, unauthorized invasion of land ownership by a person having no lawful right or title to enter on the property. Trespass can occur on the land, below the surface or even in the airspace. Certain trespasses are privileged, such as trespasses to prevent waste, to serve legal process and to use reasonable airspace for flights by aircraft.

The unauthorized possession of real property is a mere trespass and cannot ripen into ownership unless all elements of adverse possession are present. Because a tenant is entitled to the exclusive possession of the leased premises, not only against third parties but the landlord as well, any unauthorized entry by either the landlord or a third party would constitute trespass.

Generally, a landowner is not liable for injuries suffered by a trespasser whose presence is not known. When the landlord knows of the trespass, however, the landlord must not create conditions or do anything that may imperil the trespasser.


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