Adverse Possession

Definition of "Adverse Possession"

Written by

Amy Kerlin

Coldwell Banker Bullard Realty

The term adverse possession is a legal principle that allows a person who resides on another person’s land or possesses another person’s land to get a title for that land. There are some conditions that need to be met for this legal principle to be applied so if one simply resides or has possession of someone else’s land, that does not, in itself, grant them title to that land.

The resider or possessor of the land can receive title to the land but the conditions take into account whether they infringe the right of the actual owner and whether they possess the property for a continuous period of time.

What is Adverse Possession in Real Estate?

This legal principle can be applied in the situation where one party gets title to another party’s property. This can be done with or without the other party’s knowledge, intentional or unintentional.

Intentional Adverse Possession

Intentional adverse possession occurs in case a trespasser deliberately occupies another’s land to either live on it or take it. The trespasser is aware that the property is owned, yet they take possession of it, maintain it, and pay taxes for it.

Unintentional Adverse Possession

When a homeowner accidentally builds a fence on their neighbor’s property the situation can turn into an unintentional adverse possession. The trespasser was unaware that the land where he built the fence belongs to someone else, but as the fence is built, the trespasser is entitled to claim property title for the area occupied by the fence.

How Adverse Possession Work in Real Estate?

For adverse possession to work in real estate, there must be a claimant and a defendant. In order to be granted the title of another person’s land, the claimant of adverse possession needs to prove possession, paid taxes for the property, and a deed for the property. 

The requirements necessary for the claimant’s demonstration of possession of land are:

• Continuous use - the claimant must show that they had continuous possession of the property
• Hostile takeover - the claimant must prove that there were no rent agreements, leases, or easements with the other party
• Open and notorious possession - the claimant did not hide the fact that they occupied the land and other people know this
• Actual possession - the claimant doesn’t only live there, but they pay taxes, maintain the land of the property, etc.
• Exclusive use - the claimant is the one who uses the property, no one else, and not the real owner.

In other words, adverse possession is a legal way through which someone who does not own the land, may become the owner of the land and granted title to that land. If the claimant is granted the land or property’s title, they are not required to pay the real owner money for the transfer of ownership.