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Adverse Possession

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Adverse possession allows a person who has resided on an untitled property for a certain period with the owner's permission to claim ownership of the property. The possession must be more than 12 years. A long-standing disagreement over land title can be settled through adverse possession, preventing vacant or abandoned land from being created. Let us discuss more about the adverse possession in the blog below.

Essential Elements of Adverse Possession

Below are the elements mentioned needed to prove adverse possession

  • Actual Possession: The property must be in the claimant's possession and use. The land must be controlled, used as if they were the rightful proprietors, and treated as such. Real occupancy and use of the property are required; merely holding a formal title is insufficient.
  • Open and Notorious Possession: There must be no attempt to disguise the possession; it must be carried out openly and visibly. Anyone looking at the property should be able to tell that the claimant is inhabiting it and claiming ownership. By requiring it, the genuine owner is given a chance to learn about the adverse possession claim.
  • Exclusive Possession: The claimant must have sole control and use of the property, meaning they may not share it with anybody else, not even the owner. Any permissive or joint use of the property by the real owner can call into question an adverse possession claim.
  • Continuous Possession: The term "continuous possession" refers to unbroken property ownership for the entire legally prescribed period. The claimant must keep possession intact, with no large gaps or abandonments. Short interruptions in possession are permitted in some countries, but they must be minimal and not affect the claimant's occupation's overall continuity.
  • Hostile Possession: In adverse possession, hostile possession does not always indicate hostility or aggressiveness towards the owner. It instead suggests that the claimant is using the property without the owner's knowledge or permission. Without relying on any approval or agreement, the claimant must take possession of the property as if they had the rights of the legitimate owner.
  • Statutory Period: To show adverse possession, a claimant must have the property consistently for a set amount of time, which varies depending on the jurisdiction. Depending on the jurisdiction, this period can vary from 5 to 20 years. For the whole statutory term, the claimant must satisfy all other prerequisites for adverse possession.
  • Good Faith: The claimant must demonstrate that they used the property lawfully and in good faith, saying they genuinely believed in their right to do so.
  • Evidence: Acquiring and providing proof that demonstrates the components of adverse possession, such as documents, photos, witness testimony, and other supporting materials, might be crucial to proving the claim.

Limitations and Exclusions in Adverse Possession

The limitations and exclusions in adverse possession are as follows:

  • Color of Title: Adverse possession cannot be asserted if the claimant's property ownership is based on a dubious or defective title, such as a forged document or a mistaken survey. Possession must be supported by a sincere conviction that the owner has a legitimate legal claim to the property.
  • Land Owned by the State: Adverse possession claims cannot be made against real estate owned by the government or other public institutions. Adverse possession claims are often not applicable to state-owned land, public parks, highways, or other public properties.
  • Disability or Incapacity: If the valid property owner has a legal condition or incompetence, such as being a minor, mentally ill, or serving in the military, the statutory period for adverse possession may be tolled or suspended. The claimant cannot exploit the owner's failure to uphold their rights.
  • Consent or Permission: Possession without the genuine owner's permission or consent is considered adverse possession. Adverse possession cannot be asserted if the owner has given the claimant express or implied authorization to utilize the property.
  • Short Statutory Period: The claimant cannot claim adverse possession if they haven't owned the property for the entire time period required by the jurisdiction. A claim must fully satisfy the statutory period to be successful.
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Steps to Establish Adverse Possession

The steps to establish adverse possession are mentioned below:

  1. Documentations: Collect any official paperwork that reflects your use of the property over time, such as lease agreements, utility bills, property tax records, and records proving your property ownership. These records can prove how long you have had something in your possession.
  2. Witness Testimonies: List the people who can attest to your property ownership. This can include those who have witnessed your use and occupancy of the property over an extended length of time, such as friends, neighbors, or other third parties. Their evidence can attest to the fact that your ownership is widely known.
  3. Photographs and Videos: Gather visual proof demonstrating your property use and occupancy, such as old photos or videos. This visible evidence can support the physical alterations or enhancements you made to the property while you were in possession.
  4. Improvement Receipts: Keep track of any modifications or repairs you make to the property in the form of receipts. Receipts for improvements like landscaping or remodeling are one example of this. The proof of investment in the property may strengthen your claim of exclusive and hostile possession.
  5. Affidavits: Obtain sworn declarations or affidavits from you and anyone else who knows about your ownership. These declarations must detail the aspects of adverse possession, such as the kind of possession you have, how long you've had it, how you've used it publicly, and how you don't have the owner's permission.
  6. Surveys or Boundary Agreements: Obtaining a survey or coming to a boundary agreement with neighboring property owners might help clarify and support your claim to the region you are asserting adverse possession over if there are questions about the property's limits.
  7. Legal Documentation: Compile any pertinent court files, correspondence, or documents supporting your claim of ownership or possessory rights if you have taken legal action relating to the property, such as asking for an easement or contesting ownership with the real owner.

Key Terms for Adverse Possessions

  • Possession: The claimant's actual control and occupation of the property, which demonstrates their usage and management of the land
  • Ownership: Possession, use, and control of the property lawfully and properly.
  • Continuity: The claimant's continuous and unbroken possession of the property during the required statutory term.
  • Title: The legal ownership or right to property.
  • Exclusionary Period: This refers to the period during which the actual owner is prohibited from initiating a legal action to reclaim the property due to the adverse possession claim.

Final Thoughts on Adverse Possessions

Adverse possession is a legal theory that enables someone to assert ownership of a property even without a traditional or recognized title based on their long-term possession and usage. It is a means of settling land ownership issues and avoiding vacant or abandoned property.

Certain important requirements, such as real possession, open and infamous possession, exclusive possession, continuous possession, hostile possession, and satisfaction of the statutory time, must normally be satisfied to establish adverse possession effectively. The claimant must offer proof and adhere to the rules established by the jurisdiction where the claim is filed.

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