The laws surrounding adverse possession, which allows individuals to claim ownership of another person’s property, are surprisingly consistent across the eastern United States. While each state has its own nuances, the basic elements required to establish an adverse possession claim remain the same. This article will examine the key elements of adverse possession claims in the 26 states located east of the Mississippi River.
One of the crucial requirements for adverse possession is actual possession of the property. Actual possession means having control over the property and demonstrating clear intent to exclude others from that control. This can be shown through various acts, such as residing on the land, making improvements, cultivating it, or erecting fences. However, the nature and location of the property also play a role in determining what constitutes actual possession. For example, for unimproved lands like woodlands or open fields, continued public acts of ownership that demonstrate a claim to the property can count as actual possession.
Acts of possession must be substantial and continuous, rather than sporadic. They must be visible to others, so that any person could reasonably believe the possessor to be the true owner of the land. De minimis acts, such as occasional lawn mowing, are not enough to assert possession. However, courts may consider the theory of “constructive possession” in cases where the claimant has entered the property under the “color of title,” meaning they possess a deed or instrument that appears to give them good title to the land. In such cases, the claimant may be considered to have constructive possession of the entire property described in the instrument, even if they only have actual possession of a portion of it.
The requirement of exclusive possession does not mean that the claimant must use the property to the exclusion of all other individuals. Rather, it means that the possessor must use and act as the owner of the property to prevent the true owner from doing so. It refers to exercising exclusive dominion over the land and acting in ways that an owner would. The true owner should not be able to enter the land and assert their right to possession. However, exclusive possession does not mean that others cannot enter the property with the possessor’s permission or that the true owner cannot make improvements or use the land in a more significant fashion than merely walking across it.
Open and Notorious Use
For adverse possession to be successful, the possession must be open and notorious. This means that possession should be so apparent that it puts the true owner on notice of the adverse claim. Use must be visible and obvious, indicating to the true owner that someone else is claiming possession of the property. The possessor’s use must be such that a vigilant owner would know that someone is occupying the land and that they have the opportunity to take legal action to protect their rights. While the level of visibility required may vary from state to state, the general principle is that the true owner must have an opportunity to discover the adverse claim.
In some states, there is a distinction between minor encroachments and major encroachments when it comes to open and notorious use. In cases where an encroachment is not clearly apparent to the naked eye, the adverse possessor must prove that the record owner knew of the occupation. However, if the adverse possession is clear and visible, actual knowledge by the owner is presumed, and the use is considered open and notorious.
Another essential element for adverse possession is continuous use of the property. Continuous use means that the claimant’s possession of the property has not been interrupted by abandonment, the presence of intruders, or acts of possession by the true owner. Continuous use does not require constant use but uninterrupted use during the times when the claimant could reasonably use the property. The nature of the land is taken into consideration when determining if the use is consistent. For example, seasonal use may satisfy the continuity requirement if it is appropriate for the type of property.