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Adverse possession
In real estate common law, adverse possession is a means of acquiring
title to another's real property without compensation, by, as the
name suggests, holding the property in a manner that conflicts with
the true owner's rights.
Adverse possession requires the actual, visible, hostile, notorious,
exclusive, and continuous possession of the property for the statutory
period, and some jurisdictions further require the possession to
be made under a claim of title or a claim of right. In simple terms,
this means that those attempting to claim the property are occupying
it exclusively (keeping out others) and openly as if it were their
own. Some jurisdictions permit accidental adverse possession as
might occur with a surveying error. Generally, the openly hostile
possession must be continuous (although not necessarily constant)
without challenge or permission from the lawful owner, for a fixed
statutory period in order to acquire title. Where the property is
of a type ordinarily only occupied during certain times (such as
a summer cottage), the adverse possessor may only need to be in
exclusive, open, hostile possession during those successive useful
periods. Fundamentally, adverse possession is an application of
traditional statute of limitations. Once the cause of action for
trespass arises, the landowner has a certain number of years to
bring an action. Once that time has passed, the trespasser can no
longer be evicted from the property, since the trespass action is
time-barred.
Once the statute of limitations has expired for evicting the trespassers,
and assuming the legal owner has done nothing to halt the process,
the successful adverse possessors acquire equitable title to the
land, to the extent it was actually possessed (e.g., just the part
they occupied, not necessarily everything on the legal owner's deed).
At that point they no longer need to continuously, exclusively or
openly occupy any part of the land because they now own it. However,
to become the legal owners of record (helpful to have a deed for
future transactions), they may bring an action in land court to
"quiet title" of record in their names on some or all
of the former owner's property.
Adverse possession does not typically work against property owned
by a government agency. It also fails to give any rights if the
land is registered under a Torrens title registration system.
Contents
* 1 Squatter's rights
* 2 Adverse easements
* 3 Non-common law jurisdictions
Squatter's rights
Adverse possession is sometime called "squatters' rights".
If the squatter abandons the property for a period, or if the rightful
owner effectively removes the squatter's access even temporarily
during the statutory time period, the "clock" usually
begins running again. However, one squatter may pass along continuous
possession to another squatter, known as "tacking", until
the adverse possession period is complete. A lawful owner may also
restart the "clock" by giving temporary permission for
the occupation of the property, thus defeating the necessary "continuous
and hostile" element. Evidence that a "squatter"
paid rent to the owner would defeat adverse possession for that
period.
Adverse possession is in some ways similar to homesteading. Like
the adverse possessor, the homesteader may gain title to property
by using the land and fulfilling certain other conditions. In homesteading,
however, the possession of the property is not hostile; the land
is either considered to have no legal owner or it is owned by the
government. The government allows the homesteader to use the land
with the expectation that the homesteader who fulfills the requirements
necessary for the homestead will gain title to the property.
The homestead principle and squatter's rights embody the most basic
concept of property and ownership, which can be summed up by the
adage "possession is nine-tenths of the law", in other
words, "the person who uses the property owns it". The
homestead principle and squatter's rights pre-date formal property
laws and to a large degree modern property law is a formalization
and expansion of these simple ideas.
The homestead principle is the idea that if no one is using or possessing
property, the first person to claim it and use it consistently over
a period of time owns the property. Squatter's rights embodies the
idea that if one property owner neglects property and fails to use
it, and a second person starts to tend and use the property, then
after a certain period of time the first person's claim to the property
is lost and ownership transfers to the second person, who is actually
using the property.
The legal principle of homesteading, then, is a formalization of
the fundamental homestead principle in the same way that the right
of adverse possession is a formalization of the fundamental and
pre-existing principle of squatter's rights.
The essential ideas behind the homestead principle and squatter's
rights hold generally for any type of item or property of which
ownership can be asserted by simple use or possession. In modern
law, homesteading and the right of adverse possession refer exclusively
to real property. In the realm of personal property, the same impulse
is summarized by the adage "finders keepers" and formalized
by laws and conventions about abandoned property. In the realm of
so-called intellectual property, until just a few hundred years
ago all rights in a literary or artistic work remained in the hands
of the person who physically possessed the work. The creator of
a work who wished to retain control of the work was required to
maintain physical control of the work in the manner of a trade secret.
As the idea of intellectual property developed, more and more rights
are reserved for the creator or copyright holder, regardless of
whether or not this person maintains physical control of the work
or copies of it. Fewer and fewer rights are retained by physical
possessor(s) of the work. Some rights do remain, however, and are
codified in the notion of fair use and the doctrine of first sale.
Adverse easements
Adverse possession only grants rights in the adversely possessed
property which are 'taken' by the adverse possesser. For example,
an adverse possesser may only take an easement, rather than the
entire fee title to the property. In this manner, it is possible
to adversely possess an easement, under the legal doctrine of prescription.
This must also be done openly but need not be exclusive, and must
outlast the same required statutory eviction period. It is common
practice in cities such as New York, where builders often leave
sidewalk space or plazas in front of their buildings to meet zoning
requirements, to close public areas they own periodically in order
to prevent the creation of a permanent easement and compromise their
exclusive property rights.
Furthermore, if a property owner interferes with an easement upon
his property in a manner that satisfies the requirements for adverse
prescription (e.g., locking the gates to a commonly used area, and
nobody does anything about it), they will successfully extinguish
the easement. This is another reason to quiet title after a successful
adverse possession or adverse prescription; it clarifies the record
of who should take action to preserve the adverse title or easement
while evidence is still fresh.
For example, given a deeded easement to use someone else's driveway
to reach a garage, if a fence or permanently locked gate prevents
the use, and nothing is done to remove or circumvent the obstacle,
and the statutory period expires, then the easement ceases to have
any legal force, even though it remains in the deed.
Non-common law jurisdictions
Some non-common law jurisdictions have laws similar to adverse possession.
For example, Louisiana has a legal doctrine called acquisitive prescription.
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