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| Gaining or losing land by adverse possession |
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As farmland prices continue to increase, so too does the willingness of people to ensure that traditional property boundaries are accurate. When a boundary is found to be inaccurate, often adverse possession comes into play.
Adverse possession is when someone attempts to obtain ownership of land they do not own by exercising intentional or unintentional control over such land for a certain amount of time. Although some may look at this as stealing, the common law view on this was that it was in the public interest that land not be idled, but rather put to use for the common good.
However, most often today adverse possession arises when a perceived boundary line is found to be wrong, and you’ve either been farming ground actually owned by your neighbor, or vice versa.
The common law had several requirements for adverse possession that to some extent each state has adopted. They are:
•Actual – The claimant must act in the manner as if an owner of the property.
•Open & Notorious – The claimant must engage in acts of possession consistent with the property at issue in a manner which was capable of being seen. This means had the actual owner or members of the public been in a position to see you, your acts must have been observable. You need not use the property in a manner that exceeds that which would be expected of the actual owner.
•Exclusive – The adverse possessor does not occupy the land concurrent with the true owner or share possession in common with the public. One does not have to exclude others from the land in order to claim “exclusive” use, but during the statutory period the person claiming title by adverse possession must have been the only person to treat the land in the manner of an owner.
•Hostile – Hostility exists where the claimant essentially possesses the land without permission from the owner. Thus, one cannot claim “adverse possession” if they are engaged in the permissive use of somebody else’s land.
•Under Cover of Claim or Right – This is when a person makes the claim based upon constructive possession under color of title (such as error in a deed leading them to believe they own part of a neighboring property), or makes the claim based upon actual use and possession of the area of land at issue for the statutory period.
•Continuous & Uninterrupted – All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. “Tacking” can meet the requirement. For example, a former owner’s time of adverse possession can be “tacked” to the present owner’s time of adverse possession so as to meet the statutory period.
•The Statutory Period – The statutory period, or “statute of limitations”, is the amount of time the claimant must hold the land in order to successfully claim “adverse possession”. This varies significantly from state to state. In Indiana it is 10 years, in Ohio it is 21 years, and in Michigan it is generally 15 years, but may be as little as five years if certain other factors are met.
Some states have enacted further criteria for adverse possession to be granted.
For example, Indiana requires that the real estate taxes be paid by the claimant on the property being claimed. Thus, even if a claimant has been farming an area believed to be part of their farm, unless the claimant has been paying the taxes on the parcel in dispute, in Indiana their claim will not be successful. Whenever faced with a land dispute where adverse possession may be an issue, a landowner should consult an attorney. |
| 7/23/2008 |
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