What every boundary surveyor should know about adverse possession.



Adverse possession is an old but extremely useful concept of law. The machination of claiming adverse possession is a complex legal issue that requires the engaging of attorneys. However, it is an area of law with which land surveyors practicing boundary functions should be well acquainted. The knowledgeable land surveyor can be a vital member of the legal team retained to prosecute or defend claims of adverse possession.

History

Believe it or not, the concept of adverse possession appears in a portion of the Code of Hammurabi, some 2,000 years before Christian Era. Law 30 of the Code states "If a chieftain or a man leave his house, garden, and field "¦ and some one else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.(1)" Of the 282 rules the Code entails, three deal directly with the concept we know today as adverse possession.

The ancient Romans held the belief that the land had a kind of spirit that was nurtured by the possessor and user of it. The possessor or user of the land was considered to have a greater "ownership" of the land than the titled owner. In fact, the familiar saying "possession is nine-tenths of the law" had its origins in the concepts of adverse possession.

The period in English law between Williams' conquering of England in 1066 and the abolition of primogeniture (2) in 1925, saw many innovations in statutory attempts to gain, hold and perpetuate the ownership of land. The Statute of Wills in 1540 allowed lands to be passed down to heirs (3). The Statute of Tenures in 1660 (4) ended the feudal system and created the modern fee simple title. The statutes of adverse possession remained as part of the law because of their usefulness.

Purpose

The statutes concerning adverse possession vary from state to state. However, all statutes are based on a limitation in time as to when the "true owner" may bring suit to recover the land adversely possessed by another.

As odd as it may sound, the statutes regarding adverse possession actually serve to strengthen and "prove up" titles to land. By limiting the time in which actions to recover may be brought, title to land is protected from spurious lawsuits based upon possible interests from many years ago. Because of the way our nation was founded and grew, the initial legal title may not be entirely clear or even properly valid. Although much of our country falls under the jurisdiction of the Public Lands Survey System, the original pioneers often "squatted" on tracts of land and created farms, homesteads and ranches. If there was no method of perfecting these claims or of preventing claims arising from murky possibilities of claim in the distant past, insuring title would be a nightmare. Statutes of limitation against "ancient" claims allow title insurance companies to forego searches for chain of title extending back over long periods of time. Taken in this light, adverse possession actually strengthens claims of title in which the chain extends back earlier than the time limit for legal action based on adverse possession! Seventy-five-year-old claims to real property, however valid they may seem, are barred from the courts because of the statutes of limitations codified in the statutes governing adverse possession.

It should be noted that the claim of adverse possession is not enough to ensure title in favor of the claimant. The claim must be brought to court to quiet the title. The successful suit results not in a transfer of title, but in the establishment of a new title awarded by the court to the successful claimant. The old title and chain are set aside and considered no longer valid. In this fashion, the successful adverse possession claim becomes a solid and legally binding solution to many difficult title issues. Equally, the defeat of a claim of adverse possession solidifies the titled owners claim to the land.

Practice

Four main doctrinal areas exist under which the legal pundits place the concepts of adverse possession.

Doctrine of Limitation
Limiting the time period in which legal action to recover land may be brought protects possessory interests in the land. This allows society as a whole to benefit from the land being held adversely but allows a sufficient period for the "true owner" to recover the land. Title insurance and mortgage funding would be very risky if it were possible for a claim to property stemming back over 50 years. Memories grow dim and evidence becomes unclear. Without a limitation in which to bring suit for recovery, land ownership, as we know it today, would not exist.

Doctrine of Administration
The statutes concerning adverse possession provide a reasonable method for curing minor title defects by protecting the rights of the possessor. Adverse possession can be an effective and efficient way to remove or cure clouds of title where boundary lines may be vague, in error or simply forgotten.

Doctrine of Development
The adverse possession statutes promoted rapid development of "wild" lands with weak or indeterminate title. The early settler would never have built his farms on land that he may never truly own. Adverse possession provided a mechanism for him to perfect title to the land that he had worked hard to improve.

Doctrine of Efficiency or Personhood
This measures the strength of a person's "attachment" to the land and awards title to the claimant with the strongest "attachment." The possessor who maintains and improves the land has a more valid claim to the land than the possessor who never visits or cares for the land.

Requirements

It may come as no surprise that the statutes and the courts are stringent in their approach to the requirements to perfect title through adverse possession. The claimant must provide "clear and positive" or "clear and convincing" proof of each of the required elements; it cannot be established by inference. This level of proof is more substantial than the "preponderance of evidence" usually required in civil lawsuits. Because the claims are factually driven, each case must be examined on its own merits and adjudicated on a case-by-case basis, proven by the following four main elements.

Physical Requirements
The possession must be open, notorious and visible. It must also be exclusive and it must be actual. Some states include continuity of possession among the physical requirements. For purposes of this article, continuity will be discussed separately.

The occupation must not be covert. It should be clear to any normal person who inspects the property that someone is using the property in some sort of reasonable fashion. In other words, if the titled owner were to visit the property, it would be apparent that another is making use of the land. Many states refer to "inclosing" the property within a fence.

The possession must be exclusive. Generally, the property cannot be shared with others, especially the titled owner. There are cases where two adverse possessors have occupied the same tract and ended up with joint title. The exclusivity must be in keeping with normal standards under which a titled owner would operate. For example, if a titled owner would allow others to hunt, fish or gather blackberries on the property, the adverse possessor may allow this also. The exclusivity refers to the possession, not necessarily the use. In fact, the possessor may install a tenant on the land and exact rents just as a titled owner might.

The possession must also be actual. Though this overlaps the concepts of "open, notorious and visible," it does extend the definition a bit. The adverse possessor must be using a "reasonable portion" of the land. If the adverse possessor built a small cabin on a pond in a corner of a vast 1,000-acre parcel, the minor occupation probably would not be enough to claim the entire parcel, though a claim against a reasonable part might be successful. If the subsurface mineral rights have already been severed from the surface rights, adverse possession of the surface would not give rights to the subsurface minerals. This is consistent with the concept that the adverse possessor operates and uses the land in similar fashion to a titled owner.

Mental Requirements
Most courts hold that the adverse possession must be hostile. This means that the possession is inconsistent with the titled owner's rights and without the owner's consent.

In the case of a landlord-tenant relationship, the tenant's occupation is clearly not hostile so long as the tenant possesses the property under a valid lease. If the tenant stays on the property after the end of the lease and the owner fails to eject the tenant, the occupation may become hostile and begin the adverse possession clock.

There are two main trains of thought regarding the hostility of the possession:

The "Connecticut Rule," followed by most courts, maintains that the possessor must simply have some "claim of title." The claim may be no more than a long-standing use of the property. In states that follow the Connecticut Rule, adverse possession is possible when errors in boundary location are discovered. For example, a fence located 2 feet onto another's property may ripen into fee title for the strip when a modern survey discloses the error.

The "Maine Rule" holds the opposite from the Connecticut Rule. Under this rule, the adverse possessor must believe that they have a bona fide right to the property. In this case, the accidental error in location of the fence will not ripen into fee title for the possessor. The reasoning is that the discovery of an error proves the lack of hostility during the occupation. The use of this rule requires the courts to examine the intent of the possessor, an exercise that may prove nearly impossible.

Continuity of Possession

The use of the property must be consistent with the normal use expected of an owner with clear title. For example, if the tract of land would normally be used for just a few months during the summer for camping and recreation, then the adverse possessor would not be required to do more. If, however, the lot were a more urban one where one might expect the owner to build a house and occupy it, the adverse possessor would be expected to do likewise. In this case, the adverse possessor would be able to leave the property to go to work, go shopping, and even take vacations away from the property. Again, this is in keeping with the concept that the adverse possessor uses the property in a manner consistent with that of a titled owner.

Some states allow continuity to be "tacked." Tacking is the process of maintaining continuity through transfer of the property to another by oral transfer, written deed or agreement, bequest or inheritance. Note that this is one of the few cases where the Statute of Frauds does not void oral transfer of property. For example, P1 is the adverse possessor of a tract known as Blackwood, held in title by O. P1 transfers Blackwood to P2. P2 continues the adverse possession of Blackwood. The time of adverse possession by P1 is added to, or tacked to the time of adverse possession by P2. The importance of this will become apparent in discussing the next element of adverse possession.

In order for tacking to be allowed, privity (direct relationship, whether familial or economic) between parties must exist. In the case where P2 runs P1 off the land by any means, the period of adverse possession maintained by P1 cannot be tacked with the period of adverse possession maintained by P2.

Interestingly, tacking works the other way, too. For example, P begins adverse possession of Greenwood, held in title by O1. O1 transfers Greenwood to O2. P tacks the period of adverse possession against O1 to the period of adverse possession against O2 to calculate the length of adverse possession. There can even be cases of tacking on both sides; the possessors may tack and the titled owners may tack.

Statutory Period

Most states have statutory periods for the length of adverse possession before the titled owner can no longer bring successful suit of ejectment against the adverse possessor. The length of the periods and conditions varies greatly between states. In some states, the period is diminished if the adverse possessor pays the taxes or if the adverse possessor has "color of title" to the property being possessed. The color of title is often statutorily defined but usually amounts to the existence of a written instrument even though it is defective. For example, where there is an overlap of two deeds that appear to be of equal value, adverse possession may well be the easiest way to settle the disputed boundary.

Many states also impose extra time in certain cases during which, although the adverse possession may exist, the time is not counted toward the period of adverse possession. These cases are often referred to as "disabilities." These are disabilities on the part of the titled owner, not the adverse possessor. The disabilities generally cannot be tacked and, in most cases, they must exist at the time the adverse possession began. If two such disabilities exist at the time the adverse possession begins, whichever disability lasts the longest will usually control. Many states that have enacted such disability statutes have also set a maximum period for the disabilities.

The disability statutes often cover owners who have not reached majority (i.e. the 8-year-old who inherits Whitewood Estate upon the death of his parents) and mental incapacity of the titled owner. Some states include incarceration, serving in the armed forces, and occasionally, just being outside the jurisdiction. For example, the owner of Builtmore, who is a land surveyor on a long-term contract with a foreign government, could not reasonably be expected to keep an eye on her property without undue expense or travel.

Know Your Law

Though somewhat daunting at first, the concepts surrounding adverse possession and the statutes and case law governing its implementation are worth study. The boundaryman (or woman) would do well by his or her clients to spend time reading the statutes of the states in which he or she practices. Keeping current with case law can be as simple as a monthly search on Lexis (5) or FindLaw (6). The effort is certainly worthwhile and of no small importance to one's clients who face lawsuits based on claims of adverse possession.