Adverse Possession

MBEMax wiki article — paired with the Real Property question set on mbemax.com.

One-line summary

A trespasser becomes the new owner of land if she possesses it openly and adversely for the statutory period, and her possession is continuous, exclusive, hostile, and notorious — then title ripens by operation of law.

Mnemonic

OCEAN — Open and notorious, Continuous, Exclusive, Actual, Non-permissive (hostile).

Picture a lone surfer on a beach: for as long as the statutory tide runs, "OCEAN" carves off a piece of shore.

The rule (plain-language)

Title by adverse possession requires possession that is (1) open and notorious, (2) continuous for the statutory period, (3) exclusive, (4) actual, and (5) hostile (without the true owner's permission). In many jurisdictions, a sixth element — (6) under claim of right or color of title — is required or affects the scope of possession.

The five (or six) elements

1. Open and notorious — use that is sufficiently visible that a reasonably attentive owner would notice. Not clandestine.
2. Continuous — continuous for the full statutory period (usually 10–21 years; in some states 5 with color of title + payment of taxes). Seasonal use may suffice if normal for the type of property. Tacking permits successive possessors in privity to combine their periods.
3. Exclusive — not shared with the true owner or the general public.
4. Actual — actual entry and physical use (farming, fencing, building, paying taxes, maintaining). Color of title allows constructive possession of the area described in the defective instrument.
5. Hostile — without the true owner's permission. Jurisdictions split on state of mind: majority treats "hostile" objectively (merely without permission); Maine rule requires good-faith belief; Connecticut rule requires knowledge that title belongs to another.
6. Claim of right — some jurisdictions treat this as synonymous with hostile. Color of title — a defective instrument purporting to convey the land — allows constructive possession of the entire parcel described even if physical possession is only part.

Tolling and disabilities

• Disability at time of disseisin — statute tolled while the true owner is a minor, incompetent, or imprisoned; usually runs a statutory period after removal (e.g., 10 years after majority).
• Disabilities must exist at the start — later disabilities do not toll.
• Future interests — adverse possession runs only against present possessors; not the holder of a remainder or executory interest until they become possessory.
• Government land — generally immune from adverse possession ("nullum tempus").

Scope

• Actual possession — adverse possessor takes what she actually occupied.
• Color of title — adverse possessor constructively takes the entire parcel described in the defective instrument, provided part is actually occupied and the whole is a contiguous, reasonable parcel.

NCBE loves to test

• Hostile doesn't mean intent to steal. Objective-hostility (majority) requires only absence of permission. Check the call for "good faith" or "subjective" language.
• Tacking requires privity. Voluntary transfer, inheritance, or devise. Ouster between hostile strangers breaks tacking.
• Permission defeats. Tenant cannot acquire landlord's title. Cotenants must unequivocally oust the other.
• Seasonal use. Using a summer cottage only in summer = continuous if that's the normal use.
• Future interests. Possessor's clock doesn't run against a remainderman until the present interest ends (e.g., life tenant dies).
• Color of title + taxes — some states (e.g., California, Florida) cut the statutory period if adverse possessor pays taxes on the parcel.
• Encroachments. Minor encroachments (a fence one foot onto a neighbor's land) can ripen into AP. Some jurisdictions now require good-faith mistake for minor encroachments.
• Disability rule trap. Only disabilities existing at the initial disseisin toll; a landowner who becomes disabled mid-period doesn't get tolling.

Fast hypos

Hypo 1. D farms a strip of O's land for 25 years, openly, using it as her own, without permission. Statutory period is 20 years. Adverse possession — strip becomes D's.

Hypo 2. D enters under a deed from a seller who didn't actually own the strip. D lives there for 20 years. Color of title — constructively takes whole described parcel even if actually occupied only part.

Hypo 3. O is a minor when D begins adversely possessing. Statutory period is 20 years. O reaches majority at year 15. Jurisdiction tolls until 10 years after majority. Statute runs for 10 years after majority even if less time has passed since D's entry — D may need to continue possession.

Hypo 4. Cotenant A occupies the family farm alone for 22 years, pays taxes, refuses B's requests for rent. Ouster required — conduct must unmistakably deny B's rights; mere occupancy by a cotenant is insufficient.

Case anchors

• Mannillo v. Gorski, 54 N.J. 378 (1969) — minor encroachments and open-and-notorious element.
• Howard v. Kunto, 477 P.2d 210 (Wash. App. 1970) — seasonal continuous possession of summer cottage.
• Van Valkenburgh v. Lutz, 106 N.E.2d 28 (N.Y. 1952) — actual / substantial enclosure.
• Gorski v. Mannillo cited with Mannillo for modern analysis.
• Carpenter v. Ruperto, 315 N.W.2d 782 (Iowa 1982) — hostility state-of-mind requirement.

See also

• Easements
• Recording Acts
• Fixtures
• Future Interests

Sources

Restatement (First) of Property §§ 221–223 (and successor Restatement treatments); state statutes of limitation varying by jurisdiction; Howard v. Kunto, 477 P.2d 210 (Wash. App. 1970); Mannillo v. Gorski, 54 N.J. 378 (1969); Van Valkenburgh v. Lutz, 106 N.E.2d 28 (N.Y. 1952); Carpenter v. Ruperto, 315 N.W.2d 782 (Iowa 1982).