General Principle - A person can become the owner of land by wrongfully possessing it long enough. The wrongful possession can “ripen” into a legal right to possession—that is, ownership. When ownership is acquired in this way, it is called title by adverse possession.

Gaining Title by Adverse Possession - Title by adverse possession is not, strictly speaking, a matter of common law. It occurs by operation of a statute, namely, the statute of limitations on “ejectment.”

An action in ejectment is the basic action at law to recover possession of land. When the statute of limitations on ejectment runs out, the dispossessed owner can no longer take back possession of his or her land.

The adverse possessor simply gets to keep the property.From then on, the adverse possessor is treated as owner—as though he’d been the owner all along.

Note: The adverse possessor does not “derive” title from the prior owner, but gets a new title based on the possession. This is sometimes called title by “original acquisition.”

Policy Rationale for Adverse Possession - The key policy rationale of adverse possession doctrine is to protect expectations based on longstanding patterns of land occupation. Additional considerations also come into play, such as encouraging investment and marketability of property.

It is the experience of judges and lawyers over time that most transactions are properly documented and are effective to carry out their obviously intended purposes. In that regard, courts should not lightly deprive owners of their property rights.

But which is more likely to protect legitimate rights of ownership? Enforcing stale claims against the possessor, especially when the evidence supporting those stale claims is weak and inconclusive? Or enforcing the claim made by the possessor?

In these situations, the law favors the possessor - when he or she can demonstrate compliance with the five elements of adverse possession.

Five Criteria for Adverse Possession - The possession must be:

▪ Actual

▪ Open and notorious

▪ Hostile and under claim of right

▪ Continuous

▪ Exclusive

In subsequent posts, we will address each of these elements.

The Law School Experience - These and related topics are covered in our tutorials on Property.

To explore some of our free materials, go to The Law School Experience.