Robbins: What is adverse possession?
Rohn Robbins Follow
In part, the way the West was won was by the employment of the device of adverse possession. Adverse possession is a method of acquiring legal title to real property simply by possessing it for some statutory length of time.
If you think about it, the implications of this are profound: A person may simply occupy a parcel of real property for long enough and — voila! — it becomes his. He acquires the legal right to possession (with all intendments of ownership that implies) just by hanging on for long enough and defending his interest in the land against all others. What wasn’t his becomes his largely by the strength of pure tenacity. Of course, there are some requirements that must be met to make it so.
To acquire real property by adverse possession, there must be proof of non-permissive use. What this means is that the person occupying the land does so without the consent of the actual owner. For example, if you were to occupy a parcel of real property under the terms of a lease, possession of the land would be “permissive,” that is, with the knowledge and consent of the owner.
In a “non-permissive” holding, the person occupying the land does so without the owner’s knowledge and consent. There is nothing giving him the legal right to occupy the land and he does so “adversely,” in derogation of the interests of the actual owner.
To acquire realty by adverse possession, the possessor’s occupation must also be actual, open, notorious and exclusive and must continue for the statutory period. Actual simply means that the adverse possessor is on the land and has taken dominion and control of it.
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It is not enough to claim to possess the land. One must be established “on” it. “Open” means not by stealth. A structure or some other evidence of purported ownership must be evident; fences have been erected, livestock raised, crops grown, water wells sunk … that sort of thing. “Notorious” means generally known and talked about. It is common knowledge that the adverse possessor is on that land and calls it his.
Exclusive means what it logically implies; the possessor claims the lands as his and only his. The occupant intends to claim and hold the property in opposition to all the world. It’s his and no one else’s.
The statutory period required to acquire land by adverse possession varies from state to state. In some states, adverse possession may be perfected in as little as five years. In others, the period can stretch to 20 years or more. There may be different periods of time which are applicable in different circumstances within a single state, depending upon whether the adverse possessor has “color” of title and/or whether or not taxes have been paid upon the land. In some cases, longer possession is required against public entities as compared to individuals.
“Color of title” means that there is an appearance or semblance of title, or the legal right to claim the property, as yours. There “appears” to be a legal right to ownership held by the person claiming it. Color of title is sometimes referred to as “apparent title;” it appears from some extraneous fact or circumstances, other than the claim of a party, which supports the person’s claim to ownership but which, for some defect, falls short of actually establishing it. Accordingly, in some states where there is an appearance of ownership but the ownership fails because of some defect, the road to ownership, via the route of adverse possession, may be swifter in order to prevent injustice.
What is laudatory about adverse possession is that the adverse possessor is rewarded for making nonproductive or fallow land productive. The person putting unproductive use to land is rewarded with its ownership.
However, what is scary about the doctrine is that an owner who “sleeps” on his or her rights can forfeit ownership of realty by virtue of his or her inactivity. Someone is openly and notoriously occupying your land against your interests but, since you are not using it, you do nothing. If you continue your inactivity for long enough, you may one day find that the property is no longer yours and now, is his.
It’s sort of like finding a lost kitten, caring for it, and raising it. After a time, that kitten is no longer lost, but becomes a member of the family. Your family, the one that raised and nurtured it and, by virtue of such rearing, acquires it as theirs.
In many jurisdictions it’s however not quite as simple as nurturing the “lost kitten” of possession. In those states — Colorado among them — “just compensation” must be paid to the “prior” owner. As such, although ownership would transfer, like many things in life, the new ownership ain’t free.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
