1.28 Adverse Possession


In General

"Adverse Possession" may be defined as the exclusive, continuous, uninterrupted, visible and notorious entry onto, and possession of, lands of another for the required legal period of time. "Adverse Possession" is a method of acquiring title to property through the possession of the property for a statutory period of time (which varies from state to state) either under color of title or by a mere naked claim. To constitute color of title, there must be a "paper title" to give color to the adverse possession. "Paper title" means a writing which purports to pass title, but does not, because the grantor lacks title or the mode of conveyance is defective. A mere claim of title may be proved by parol evidence.

This kind of possession of real estate must be inconsistent with the rights of the true (usually record) owner of the property. Possession under a permissive use such as an easement or lease, fails to prove a title claim by adverse possession.

For the adverse possession to ripen into ownership, certain conditions pertaining to the type and quality of possession must be fulfilled. Possession must be:

  • Actual
  • Hostile
  • Open and Notorious
  • Exclusive
  • Continuous for the statutory period of time

Certain state statutes require the adverse possessor to prove color of title, and payment of ad valorem taxes during the years prior to the end of the statute of limitations.

Title by adverse possession rests upon a state statute of limitation, which limits the time during which a true owner can bring an action to recover the land from the adverse possessor.

Acquiring title by adverse possession requires strict compliance with state statutes and judicial decrees interpreting those statutes. Extreme care must be exercised in this area. Stewart Title does not insure titles based only on adverse possession.


Tacking Possessions

The doctrine of tacking is one which permits an adverse possessor to add the current period of possession to that of a prior adverse possessor or possessors in order to establish a continuous possession for the statutory period. Tacking requires privity of possession between the different adverse possessors. Privity may be based on contract, estate, or operation of law. If there is no privity between successive possessors, state laws prohibit tacking.

The requirements and conditions for tacking are established by state law.


Adverse User

An adverse user acquires a right to a limited use of the property for a statutory period of time (which varies from state to state). The object of the adverse user is not to obtain possession and ownership of the fee, but to acquire a nonexclusive right to use another's land for a specific purpose, such as ingress and egress.


Easements By Prescription

Easements can be acquired by adverse possession under a claim of right for the statutory prescriptive period. The use must be hostile in its inception in order to satisfy a claim by adverse possession. This acquisition is known as ?easement by prescription? and the general rules of adverse possession are applicable.


By Whom Title May Be Acquired By Adverse Possession

As a general rule, state law allows any person, who is otherwise capable of taking title to real estate, to take title by adverse possession. Any person is defined as persons natural or artificial, including the United States, a state, a city, or any other governmental entity.


Against Whom Title May Be Acquired By Adverse Possession

As a general rule, title by adverse possession may be acquired against any person except those against whom the statute of limitations does not run.

Title by adverse possession cannot be acquired against government entities owning public property. Therefore, title by adverse possession cannot be acquired against the United States, a state, or local governmental bodies.

Certain treaties, state laws and judicial decrees prohibit acquisition of title by adverse possession on Indian lands, and property owned or leased by quasi-public corporations such as railroad, canal, pipe line, gas, power, telegraph, and telephone companies.


Title Insurance Policies Based On Adverse Possession

No title insurance policy should be issued where the basis of ownership is adverse possession unless there is a final nonappealable court judgment or decree vesting title to the land in the proposed insured. The title agent must verify the statutory basis of the action and the validity of the judicial proceedings (jurisdiction, necessary party-defendants, service, any term or provision of the decree or judgment, no right to appeal, and no right to review). Prior to the issuance of any title insurance policy, a certified copy of the judgment or decree entered in the suit must be filed in the appropriate real estate recording office.

Deviations from the foregoing are sometimes permitted particular where the ownership to be insured is based upon a record chain of title for a period of time substantially longer than the required period for adverse possession and the adverse possession is intended for the purpose of overcoming an ancient "break" or defect in the chain of title.

In many situations, statutes of limitations are indispensable tools used to eliminate title defects on the property.

If you are requested to issue a title policy based on ownership by adverse possession and there is neither:

  • A final nonappealable judgment; nor,
  • A Marketable Title Act with which you have complied.

You must contact the National Legal Department for approval prior to issuance of the policy.