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Encyclopedia > Adverse possession
Property law
Part of the common law series
Acquisition of property
Gift  · Adverse possession  · Deed
Lost, mislaid, and abandoned property
Alienation  · Bailment  · License
Estates in land
Allodial title  · Fee simple  · Fee tail
Life estate  · Defeasible estate
Future interest  · Concurrent estate
Leasehold estate  · Condominiums
Conveyancing of interests in land
Bona fide purchaser  · Torrens title
Estoppel by deed  · Quitclaim deed
Mortgage  · Equitable conversion
Action to quiet title
Limiting control over future use
Restraint on alienation
Rule against perpetuities
Rule in Shelley's Case
Doctrine of worthier title
Nonpossessory interest in land
Easement  · Profit
Covenant running with the land
Equitable servitude
Related topics
Fixtures  · Waste  · Partition
Riparian water rights
Lateral and subjacent support
Assignment  · Nemo dat
Other areas of the common law
Contract law  · Tort law
Wills and trusts
Criminal Law  · Evidence

In common law, adverse possession is the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time. Circumstances of the adverse possession determine the type of title acquired by the adverse possessor, which may be fee simple title, mineral rights, or another interest in real property. Image File history File links This is a lossless scalable vector image. ... This article or section does not cite any references or sources. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... A gift, in the law of property, has a very specific meaning. ... An English deed written on fine parchment or vellum with seal tag dated 1638. ... {{PropertyLaw}} In the [[common law]] of [[property]], personal belongings that have left the possession of their rightful owners without having directly entered the possession of another person are deemed to be lost, mislaid, or abandoned, depending on the circumstances under which they were found by the next party to come... Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. ... Bailment describes a legal relationship where physical possession of personal property (chattels) is transferred from one person (the bailor) to another person (the bailee) who subsequently holds possession of the property. ... To licence or grant licence is to give permission. ... Estate is a term used in the common law. ... Allodial title is a concept in some systems of property law. ... Fee simple, also known as fee simple absolute or allodial, is a term of art in common law. ... This article includes a list of works cited or a list of external links, but its sources remain unclear because it lacks in-text citations. ... A life estate, is a term used in common law to describe the ownership of land for the duration of a persons life. ... A defeasible estate is created when a grantor transfers land conditionally. ... In property law and real estate, a future interest - is an interest that accompanies a defeasible estate. ... A concurrent estate or co-tenancy is a concept in property law, particularly derived from the common law of real property, which describes the various ways in which property can be owned by more than one person at a given time. ... A leasehold estate is an ownership interest in land in which a lessee or a tenant holds real property by some form of title from a lessor or landlord. ... This article refers to a form of housing. ... Conveyancing is the act of transferring the legal title in a property from one person to another. ... A bona fide purchaser (BFP)—or bona fide purchaser for value without notice (BFPFVWN)—in the law of real property, is an innocent party who purchases property for value, without notice of any other partys claim to the title of that property. ... Torrens title is a system of land title where a register of land holdings maintained by the state guarantees indefeasible title to those included in the register. ... Estoppel by deed is a doctrine in the law of real property that arises where a party conveys title to land that he does not own to a bona fide purchaser, and then acquires title to that land. ... A quitclaim deed is a term used in property law to describe a document by which a person (the grantor) disclaims any interest the grantor might have in a piece of real property, and passes that claim to another person (the grantee). ... This article is about the legal mechanism used to secure property in favor of a creditor. ... Equitable conversion is a doctrine of the law of real property under which a purchaser of real property becomes the equitable owner of title to the property at the time he/she signs a contract binding him/her to purchase the land at a later date. ... This page is a candidate to be copied to Wiktionary. ... In property law and real estate, a future interest - is an interest that accompanies a defeasible estate. ... A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring his interest in the property. ... The rule against perpetuities is a rule in property law which prohibits a contingent grant or will from vesting outside a certain period of time. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... In the common law of England, the doctrine of worthier title was a legal doctrine that preferred taking title to real estate by descent over taking title by devise or by purchase. ... A nonpossessory interest in land is a term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another. ... An easement is the right to do something or the right to prevent something over the real property of another. ... A profit, in the law of real estate, is a nonpossessory interest in land similar to the better-known easement, which gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another. ... A covenant running with the land, is a real covenant, in the law of real property. ... An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land, requiring the landowner to maintain certain practices with respect to the land (e. ... In the law of real property, fixtures are anything that would otherwise be a chattel that have, by reason of incorporation or affixation, become permanently attached to the real property. ... Waste is a term used in the law of real property to describe a cause of action that can be brought in court to address a change in condition of real property brought about by a current tenant that damages or destroys the value of that property. ... A partition is a term used in the law of real property to describe the court-ordered division of a concurrent estate into separate portions representing the proportionate interests of the tenants. ... Riparian water rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. ... Lateral and subjacent support, in the law of property, describes the right a landowner has to have that land physically supported in its natural state by both adjoining land and underground structures. ... An assignment is a term used with similar meanings in the law of contracts and in the law of real estate. ... Nemo dat quod non habet, literally meaning no one [can] give what they dont have is a legal rule, sometimes called the nemo dat rule that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. ... A contract is any promise or set of promises made by one party to another for the breach of which the law provides a remedy. ... In the common law, a tort is a civil wrong for which the law provides a remedy. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply. ... The law of evidence governs the use of testimony (e. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Title is a legal term for an owners interest in a piece of property. ... This article does not cite any references or sources. ... Remuneration is pay or salary, typically monetary compensation for services rendered, as in a employment. ... In jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society. ...


The law of adverse possession is partly statutory and partly common law. The required period of uninterrupted possession arises out of a statutory limitation period or statute of limitations. Other elements of adverse possession are judicial constructs. For other uses, see Law (disambiguation). ... A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ... A statute of limitations is a statute in a common law legal system setting forth the maximum period of time, after certain events, that legal proceedings based on those events may begin. ...

Contents

Requirements for adverse possession

Adverse possession requires three elements in regards to the possession of the property[1]: Look up Possession in Wiktionary, the free dictionary. ...

  1. physical: open and notorious (visible); actual; exclusive;
  2. mental: hostile;
  3. temporal: continuous (uninterrupted).

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 have exclusive, open, hostile possession during those successive useful periods, for the required number of years. In the description of a mathematical set, the term exclusive denotes that the endpoints of a range are not included within the set. ... Surveyor at work with a leveling instrument. ... The Statute of Grand Duchy of Lithuania A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ...


Effect of adverse possession

An adverse possessor will be committing a trespass on the property that they have taken and the owner of the property could cause them to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that the action of trespass is brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the land owner to evict the adverse possessor depends on the jurisdiction. “Unlawful entry” redirects here. ... Acquiescence is, most generally, permission given by silence or passiveness. ... This article does not cite any references or sources. ...


In some (such as England and Wales), the title of the landowner will be automatically extinguished once the relevant limitation period has passed. This process now only applies to unregistered land.


In other jurisdictions, the adverse possessor acquires merely an equitable title: the land owner being a trustee of the property for them. This article is about concept of equity in Anglo-American jurisprudence. ...


Adverse possession only extends to the property adversely possessed. If the original owner had a title to a greater area (or volume) of property, the adverse possessor does not obtain all of it.


In some jurisdictions, a person who has successfully obtained title to property by adverse possession may (optionally) bring an action in land court to "quiet title" of record in their names on some or all of the former owner's property. Such action will make it simpler to convey the interest to others in a definitive manner, and also serves as notice that there is a new "owner" of record, which may be a pre-requisite to certain benefits (including equity loans, or judicial standing as an abutter). However, even if such action is not taken, the title is legally theirs, with most of the benefits and duties, including paying property taxes to avoid losing title to the tax collector. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another. This page is a candidate to be copied to Wiktionary. ... An abutter is a person (or entity) whose property is adjacent to the property of another. ... Property tax, millage tax is an ad valorem tax that an owner of real estate or other property pays on the value of the property being taxed. ...


Adverse possession does not typically work against property owned by a government agency. However, there will be a more complicated analysis if private property were taken by eminent domain, control given to a private corporation (such as a railroad), then abandoned. Eminent domain (United States), compulsory purchase (United Kingdom, New Zealand, Republic of Ireland), resumption/compulsory acquisition (Australia) or expropriation (Canada, South Africa) in common law legal systems is the inherent power of the state to seize a citizens private property, expropriate property, or rights in property, without the owner... This is the top-level page of WikiProject trains Rail tracks Rail transport refers to the land transport of passengers and goods along railways or railroads. ...


Where land is registered under a Torrens title registration system or similar, special rules apply. It may be that the land cannot be affected by adverse possession (as was the case in England and Wales from 1875 to 1926), or that special rules apply. Torrens title is a system of land title where a register of land holdings maintained by the state guarantees indefeasible title to those included in the register. ...


Adverse possession may also apply to territorial rights. In the United States, Georgia lost an island in the Savannah River to South Carolina, when that state used fill from dredging to attach the island to its own shore. Since Georgia knew of this yet did nothing about it, the U.S. Supreme Court (which has original jurisdiction in such matters) granted this land to South Carolina, even though the Treaty of Beaufort (1787) explicitly specified that the river's islands belonged to Georgia. For the Department of Energy facility, see Savannah River Site The Savannah River is a major river in the southeastern United States, forming most of the border between the states of South Carolina and Georgia. ... Official language(s) English Capital Columbia Largest city Columbia Largest metro area Columbia Area  Ranked 40th  - Total 34,726 sq mi (82,965 km²)  - Width 200 miles (320 km)  - Length 260 miles (420 km)  - % water 6  - Latitude 32° 2′ N to 35° 13′ N  - Longitude 78° 32′ W to 83... Fill may refer to: In civil engineering, a fill is an artificial ridge or dam of earth or gravel (fill dirt) constructed to support a prepared right-of-way such as a railroad or highway across a valley or depression. ... This article does not cite any references or sources. ... The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... This does not cite any references or sources. ... The Treaty of Beaufort, also called the Beaufort Convention, is the treaty that officially set the all-river boundary between the U.S. states of Georgia and South Carolina. ... For other uses, see River (disambiguation). ...


England and Wales

In England and Wales, adverse possession has been governed by section 15 of the Limitation Act 1980, since 1 May 1981.[2] The limitation period for the adverse possession of land is 12 years in virtue of Section 15(1).[3] The Limitation Act 1980 (c. ... Year 1981 (MCMLXXXI) was a common year starting on Thursday (link displays the 1981 Gregorian calendar). ...


The position of a registered landowner has been greatly improved since the coming into force of the Land Registration Act 2002. Where land is registered, the adverse possessor may apply to be registered as owner after 10 years of adverse possession and the Land Registry must give notice to the true owner of this application. This gives the land owner a statutory period of time [65 business days] to object to the adverse possession, after which the true owner usually will have a further two years in which to evict the adverse possessor. This effectively prevents the removal of a land owner's right to property without their knowledge.


Where a tenant adversely possess land, there is a presumption that they are doing so in a way that will benefit their landlord at the end of their term. If the land does not belong to their landlord, the land will become part of both the tenancy and the reversion. If the land does belong to their landlord it would seem that it will be gained by the tenant but only for the period of their term. [4] In theory, a conversion is an agreement such that one party takes ownership of a piece of property from another under the understanding that the ownership will revert to the second party when an agreed event occurs. ...


Squatter's rights

Adverse possession is sometimes 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, or even gives his permission, the "clock" usually stops. For example, if the required time period in a given jurisdiction is twenty years and the squatter is removed after only fifteen years, the squatter loses the benefit of that 15 year possession (i.e., the "clock" is re-set to "zero"). If that squatter later retakes possession of the property, that squatter must, in order to acquire title, remain on the property for a full twenty years after the date on which the squatter retook possession. In this example, the squatter would have to have held the property for a total of 35 years (the 15 original years plus the 20 later years) to acquire title. This article is about occupying land without permission. ...


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" at "zero" 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.


Comparison to homesteading

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 in law is the concept that one can gain ownership of something which currently has no owner by using that thing. ...


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. Broadly defined, homesteading is a lifestyle of simple, agrarian self-sufficiency. ... The Homestead principle in law is the concept that one can gain ownership of something which currently has no owner by using that thing. ...


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. This article does not cite any references or sources. ... Personal property is a type of property. ... In the common law of property, personal belongings that have left the possession of their rightful owners without having directly entered the possession of another person are deemed to be lost, mislaid, or abandoned, depending on the circumstances under which they were found by the next party to come into...


Intellectual 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. For the 2006 film, see Intellectual Property (film). ... A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors within the same industry or profession. ... Not to be confused with copywriting. ... For fair use in trademark law, see Fair use (US trademark law). ... The first-sale doctrine is a limitation on copyright that was recognized by the U.S. Supreme Court in 1908 and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. ...


Adverse easements

Adverse possession grants only those rights in the adversely possessed property which are 'taken' by the adverse possesser. For example, an adverse possesser might choose to 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. Often, this process requires the removal of land pirates, who are notorious for supporting the creation of adverse easements. An easement is the right to do something or the right to prevent something over the real property of another. ... Fee simple is an estate in land in common law. ... An easement is the right to do something or the right to prevent something over the real property of another. ... Midtown Manhattan, looking north from the Empire State Building, 2005 New York City (officially named the City of New York) is the most populous city in the state of New York and the entire United States. ... A typical zoning map; this one identifies the zones, or development districts, in the city of Ontario, California Zoning is a North American term for a system of land-use regulation. ... This page deals with property as ownership rights. ... Pirates may refer to: A group of people committing any of these activities: Piracy at sea or on a river/lake. ...


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 the deed held by the fee simple owner stated that the owner's interest was subject to the easement.


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. This article is about the U.S. State. ...


In Roman law, usucapio laws allowed someone who was in possession of a good without title to become the lawful proprietor if the original owner didn't show up after some time (one or two years), unless the good was obtained illegally (by theft of force). Using the term Roman law in a broader sense, one may say that Roman law is not only the legal system of ancient Rome but the law that was applied throughout most of Europe until the end of the 18th century. ... Usucaption is a concept found in civil law systems and has its origin in the Roman law of property. ...


Recent Examples

Adverse Possession law has been exercised in Boulder, Colorado where a former judge, Richard McLean, and his wife, attorney Edith Stevens, have successfully obtained a court order to take land away from their neighbors. The former owners allege that the McLeans abused the intent of the law, as well as played on their connections in government to win favorable judgements. [5]


See also

This aims to be a complete list of the articles on real estate. ... Transients are usually referred to in negative terms, and thought of as sub-par humans, who live outdoors in urban centres because they cannot support themselves. ... An easement is the right to do something or the right to prevent something over the real property of another. ... For other uses, see squat. ... Usucaption is a concept found in civil law systems and has its origin in the Roman law of property. ... Usufruct describes the legal right to utilise and derive profit from property that belongs to another person, as long as the property is not damaged. ... This article or section does not cite any references or sources. ... This page deals with property as ownership rights. ... In law, lien is the broadest term for any sort of charge or encumbrance against an item of property that secures the payment of a debt or performance of some other obligation. ... Pooybuttpular sovereignty is the doctrine that the state is created by and therefore subject to the will of its people, who are the source of all political power. ... A United States law recognizing the rights of squatters. ... Revised Statute 2477 (popularly known as RS 2477 or The Trespassers Loophole) was adopted by the United States Congress in 1866 to encourage the settlement of the Western United States by the development of a system of highways. ...

References

  1. ^ Although some jurisdictions further require the possession to be made under a claim of title or a claim of right.
  2. ^ Section 41(2) Limitation Act 1980
  3. ^ Section 15(1) Limitation Act 1980
  4. ^ Smirk v Lyndale Developments Ltd [1974] 3 WLR 91
  5. ^ Harsanyi, David. "Property right wrongly taken", Denver Post, 2007-11-19. Retrieved on 2007-11-21. 

  Results from FactBites:
 
Counsel.Net - PROPERTY - The Property forum is dedicated to discussions about Real Property cases and Real Property ... (340 words)
Re: Adverse Possession / Estoppel by Aquiescence, 7/22/07, by Duane.
Adverse Possession / Estoppel by Aquuiescence, 7/20/07, by Duane.
Re: Perspective easement or Adverse Possesion, 3/19/07, by TIMOTHY PAYNE.
Adverse Possession Essays| Adverse Possession Dissertations (1732 words)
In common law, adverse possession is the name given to the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time.
Adverse possession requires the actual, visible, hostile, notorious, exclusive, and continuous possession of the property, and some jurisdictions further require the possession to be made under a claim of title or a claim of right.
It may be that the land cannot be affected by adverse possession (as was the case in England and Wales from 1875 to 1926), or that special rules apply.
  More results at FactBites »

 
 

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