Talk:Adverse possession

Blatant contradiction in Head

This is said to be common law, then totally statutory. I am not versed in the law in this area, however, one or the other must be false. (Or maybe, if it were historically under common law, this is not made clear). Bamkin 12:17, 24 May 2007 (UTC)

The modern principle of adverse possession is entirely statutory. The common law position is complicated as there were a number of forms of action, but none of them depended on showing possession for a period of time. Francis Davey 11:19, 8 August 2007 (UTC)

I don't understand the concern. The statutes are based on common law. If a set of circumstances is not clearly addressed by the statute, then the court will turn to common law (or case law) for guidance. Kaycee1217 (talk) 22:36, 5 June 2009 (UTC)

That's not quite right, the common law principle of immemorial user is different. Adverse possession is a purely statutory principle not based on the common law. Francis Davey (talk) 11:35, 6 June 2009 (UTC)

Still trying to understand. Doesn't the statutory law codify the common law that has been around for a long time? I'm in Oregon. We've had adverse possession here for many decades, but the statutes date only to 1990. And if you read the case law, you find many nuances that are not addressed by the statute. In fact, if you go to case law, you find that an adverse claim that "vested" before 1990 is not governed by the statute. All you have left is the common law. Kaycee1217 (talk) 15:28, 6 June 2009 (UTC)

I've put a little bit of history in the main article which traces how adverse possession originated as a doctrine. In England and Wales its purely statutory, dating back in the form we now know it to a statute of Henry VIII. For some reason this appears not to have been carried over into the law of your state (or a later statute of James I still before independence). I know there's some complexity about how older statute law was passed on after independence (as I understand it some statutes were adopted others were not) so it looks like Oregon may have started fresh and possibly reanalysed the law. I don't know but I'd be interested to know how its worked out there. I notice in the article someone says that adverse possession has something to do with laches, which of course would (from a strict understanding of common law) be impossible since adverse possession deals with legal not equitable rights and laches is a mere equitable defence. But it may be that the idea has been re-analysed over in the states like so many other things. Can you comment on how things come to be the way they are in Oregon? What does it mean for something to be "common law" there? Francis Davey (talk) 22:27, 6 June 2009 (UTC)

First, I'm a paralegal student (not even a law student), so I don't pretend to any authority. Just trying to be clear on my understanding. However, I'm involved in an AP case right now, so I've done a lot of research lately.

That means you are probably pretty well informed so I'm interested to know what you have to say. I wonder if you could mark things that are specifically US related in this article, or put anything in that is peculiarly to do with Oregon? Its hard for me when I see things that are wrong for my jurisdiction because I can't simply say "in the US X but in England and Wales Y" because I don't actually know what does hold true in the US. I've gone as far as reading a general university introduction to real property law in the US but haven't studied things much harder.Francis Davey (talk) 17:05, 7 June 2009 (UTC)

Second, we may be dealing in a problem with semantics. My understanding of "common law" is that it's law created over the years by a succession of court decisions. In some areas of law (such as AP), those decisions have evolved over centuries and refer back to English common law. The common law may change over time as subsequent decisions modify them. In the U.S., common law can diverge in the 50 individual states, so a nuance in Oregon law might not be found in Maine, for example.

Yup, that might be it.See my later comments.Francis Davey (talk) 17:05, 7 June 2009 (UTC)

Oregon became a state in 1859. The Legislature had a lot to do, so you couldn't expect them to come up with statutes for every eventuality. If a land dispute, such as an AP claim, came before a court, and the judge had no statute to guide his decision, he had to refer to the common law history. Maybe a similar case could be found in Indiana, so the Oregon judge uses that as a point of reference. Maybe the case is appealed and goes to the state Supreme Court. The SC issues a ruling, and -- presto change-o -- Oregon now has case law on Adverse Possession.

Case law = common law.

Aha! Two things to say on this: first a lawyer here would not (unless they were being pretty sloppy and probably not even then) equate case law with common law. Case law is all the law developed by judges in decided cases which are authoritative. That law includes lots and lots of interpretations of statutes particularly where the law is primarily statutory. Common law is, on the other hand, law that does not originate in statute but has been purely developed by the courts over time (and that dates back to a long tradition of doing so). Murder is a common law offence, theft a statutory one in England and Wales both have received considerable judicial interpretation. So we may be thinking of two different usages.

But even on my usage it sounds like Oregon judges put together a law of adverse possession without being bound by earlier statutes. The mind boggles slightly as to how that works. I have no experience of working in a newly constructed jurisdiction. But it may be right to describe that process as being analogous to the process that common law judges built the founding framework of common law all those years ago. You are then using the term in a different sense to me, but about a similar process. Francis Davey (talk) 17:05, 7 June 2009 (UTC)

Decades pass and the case law (or common law) evolves in Oregon, but different judges read the law differently. Eventually, some legislator learns about a court ruling that seems unfair and decides "we really need to clarify this AP business with a statute." So he writes a bill, gets it passed, and -- ta-daa -- now Oregon has an adverse possession statute.

I need to double-check my statutory history. The prevailing statute in Oregon was passed in 1989 and has been in effect since 1990. My understanding is that there was no earlier statute, but that seems unlikely.

That would be very interesting and, if you find it out, it would be cool to get it in the article. A table of periods of time for AP by jurisdiction would be interesting (for instance) with references to statutes or case law. Francis Davey (talk) 17:05, 7 June 2009 (UTC)

In a nutshell, the Oregon statute written in 1989 codified the common law (or case law) that had evolved since 1859 and which probably grew out of similar common law in other states. The other states' common law would have dated to colonial times and would have been borrowed from English law. I'm thinking it doesn't really matter in the U.S. if the English law was statutory or not. American states did not adopt English statutes as their own. They may have created similar statutes, but they didn't have to. And if there was no statute, then the courts created the law. And that (unless I'm totally out to sea) is how common law was established.

So -- I don't know -- we might be dissecting a nuance in the language that really has no bearing on the application of the law.

Kaycee1217 (talk) 15:47, 7 June 2009 (UTC)

Cool. Thanks for that. There's a small pracical effect of the difference (common law v statute) in my jursidiction, partly because the Human Rights Act 1998 overrides common law but not statute so if AP were a common law rule, it could more easily be attacked for breach of various kinds of right. This may seem weird to you but its how it works and why it may seem more important to me than it might to others. There's also other differences. I guess we just need to make sure we are consistent and clear in the article. Is it accurate (as far as it goes) for your jurisdiction? Francis Davey (talk) 17:05, 7 June 2009 (UTC)

Help with POV section on the effect of adverse possession

At the moment the section of the article that deals with the effect of the limitation period running out is POV, the problem is its unclear *which* POV. Can someone locate a jurisdiction where its true please. I do wish editors would do this as a matter of course.

In my jurisdiction (England and Wales) expiry of the limitation period extinguishes title in unregistered land. The adverse possessor becomes the legal owner of the property, not the equitable one. I suspect that in most common law jurisdictions outside the US that is true where land is unregistered.

For registered land the registered title holder becomes trustee for the adverse possessor.

I'd like to sharpen this up. Please could someone clarify that it works that way for them.Francis Davey 22:13, 23 September 2006 (UTC)

No-one has said anything, so I'll assume I can go ahead and change it. If anyone knows better, they can give some precise indication of which jurisdiction they know about. Francis Davey 15:49, 21 October 2006 (UTC)

I suggest you just go ahead and change it (making it clear of course which jurisdiction you are writing about). If somebody has writen about precise law without mentioning jurisdication, the information is not particularly useful... Bamkin 12:25, 24 May 2007 (UTC)

Squatters rights

Was the squatter's rights page deleted? --Rj 05:24, Apr 24, 2004 (UTC)

The page was squatters' rights listed for cleanup, and redirected to adverse possession. You can still see the history. Cecropia 05:52, 24 Apr 2004 (UTC)

This adverse possession article, in discussing permissive use, says, "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." This "clock" refers to the period of time in which an adverse claimant is occupying the disputed land. If the occupation must be for 20 years and 10 years has gone by and the lawful owner says, "I see you built a tool shed on my property, but that's okay because I don't use this corner anyway, and I'm a neighborly guy," then the adverse claim is halted. But I disagree that the owner's permission would "restart the clock at zero." That implies that if another 20 years go by and the lawful owner says nothing, then the adverse claim is legitimized. Case law, at least in Oregon, clearly says that once permission is given by the lawful owner, the adverse claim is halted forever.

"Permissive use, no matter how long continued, is not adverse, and when proved, denies the adverse possession." Scott v. Elliott, 253 Ore. 168; 451 P.2d 474 (1969)

"Acts done by permission never ripen into title by adverse user." Laurance v. Tucker, 160 Or 474, 480, 85 P2d 374 (1938)

Kaycee1217 (talk) 16:03, 6 June 2009 (UTC)

Discussion of possible merge with squatters rights

There appears to be some overlap or conflation of the concepts of squatters, homesteaders and adverse possessors. The latter may acquire legal or equitable ownership of property through the inaction of the rightful owners in timely evicting them. Do squatters have any ownership right, or is it more of a simple trespass that has failed to meet all the requirements of adverse possession? For example, can you secretly squat? This would not lead to any rights of a.p. because a.p. must be open, continuous and notorious, such that an ordinary prudent owner would note the hostile presence and is required to take steps to stop the clock. If someone "gets tired" of having you squat, can the owner of record evict you or tear down the premises, even if the statute of limitations for trespass has expired? Under a.p. law, the owner of record is no longer the rightful owner and has no further right to enter the a.p. property, once the a.p. is completed. In fact, the new owner must now exclude or evict the former owner if he tries to enter. Right? A merge may be possible, but squatting seems more of a temporary thing, as compared to complete transfer of ownership by process of adverse possession. Lupinelawyer 29 June 2005 05:05 (UTC)

I agree. “Squatter's rights” is not just a synonym of adverse possession. Legislation like the Preemption Act of 1841 gave rights to squatters apart from statutory or common law adverse possession rights. Also, the concept can also refer to laws that make it difficult to evict tenants or trespassers and even more mundane usages such as policies that allow on campus students to get first “bid” on the dorm room they had the prior term. Xlation 18:03, 6 September 2005 (UTC)

famous examples examples of adverse possession in action?

It would be nice to include a section listing actual cases of adverse possession. Famous example would be best but even obscure cases would be interesting if they were recent.

Also, examples from as many different jurisdictions as possible would be nice. E.g. are there examples of adverse possession in the USA? Funkyj 18:32, 21 May 2007 (UTC)

Shouldn't there be a discussion of the progression?

It would be nice to include a discussion of AP from Roman law. Additionally, it seems inappropriate to discuss AP without explaining that it can be used as a defense to a claim of trespass, or an eviction. Finally there should be applications for AP as it applies to tenants and landlords as well as a discussion of AP of chattels. I'm not willing to take this on, but this article seems far from even scratching the surface.

Seems Unjust

Hasn't anyone in the legal profession questioned the fairness and reasonableness of adverse possession? If a hostile person intimidates a landowner for a sufficient period, or if the landowner is disabled and has difficulty patrolling his land, the government will punish the victim and reward the criminal? Would anyone seriously propose this now, if it weren't traditional? —Preceding unsigned comment added by 71.139.26.171 (talk) 21:35, 21 October 2007 (UTC)

There have been challenges to the justice of adverse possession in my jurisdiction, but it has served a very important purpose in a system of unregistered land, namely that if someone has occupied land for a sufficiently long period of time they (and anyone buying from them) can be sure that there was not some hidden defect in their title a long time in the past. We simply can't go back to the beginning of time and make sure that all transactions were legal back to then, there has to be a cut-off point. The periods are quite long (12 years for unregistered land) and the kinds of situations you envisage do not happen in practice. Adverse possession takes place usually where a landowner has forgotten the land. With registered land, the doctrine has been effectively abolished. By the way it is not traditional, its a recent invention (relatively speaking) the ancient law knew nothing of it. It was invented later on. Francis Davey 08:12, 22 October 2007 (UTC)

The meaning of the term "hostile" was not the same in days of yore as it now is. It does not refer to a bully taking over one's land. In the days before accurate surveys and formal title records, it was just another term for adverse, as in hostile or adverse to the owner's interests. Anyone who owns undeveloped or unmarked property should "patrol" it periodically or hire someone to do so. If a neighbor is encroaching with a fence, structure, driveway, or even a hedge row, the mere filing of a legal action for ejection will stop the tolling of the adverse possession clock until the matter of trespassing is resolved. If the public is using it for a shortcut, it probably will be necessary to put up a fence and a 'No Trespassing' sign to assert the owner's rights. Otherwise, the path could become a public easement and complicate later sale or development of the property.

--NameThatWorks (talk) 22:36, 3 June 2009 (UTC)

You are confusing prescription and adverse possession. Adverse possession applies to the adverse control of land and the eventual acquisition of ownership over it. It does not apply to easements. The process that you describe is one of prescription which has a different legal basis in common law. I realise that in much of the US the two have been amalgamated as ideas (you hear of "adverse easements") but then the basis is statutory and developed. Historically they are quite different. Francis Davey (talk) 16:37, 4 June 2009 (UTC)

Surely there is a policy grounding too? To disincentivise the abandonment of such a valuable commodity as land? —Preceding unsigned comment added by 84.203.70.88 (talk) 13:16, 25 January 2009 (UTC)

The law does seem unjust, but it does seem to have validity in some rare situations. Keep in mind that the burden of proof on an adverse claimant is very high and the time-period demanded for holding the land is very long. One component in the Oregon statute is that the claimant must honestly believe the land to be his. But that's not all. The claimant must use the land continuously and exclusively without objection OR permission from the true landowner. The claimant must use it in a way that would signal to the true landowner that the claimant is using the land as his own. In Oregon, the land must be used in this way for at least 10 years before a claim can be made. (I'm told that 20 years is more typical in other jurisdictions.) AND the claimant must have clear and convincing evidence that he's met the AP requirements. So it ain't easy.

Most of the AP claims I've seen involved strips of land (300 feet by 20 feet, or something like that) along a common border. Maybe a fence was placed 20 feet within the border of Property A and Property B is purchased by someone who is told "the fence is the property line." Landowner B starts mowing the lawn up to the fence. He puts a roadside stand there and sells apples every fall. Landowner A, whose house is at the far end of his 10-acre property, never objects to the roadside stand and never says, "Nice of you to mow that section of yard, but you might not realize you're actually on my side of the line. But I never use this anyway, so it's ok with me and good luck with your apples." If Landowner A never objects and never gives permission, and if Landowner B assumes the strip is his and uses it as his own, the AP law allows Landowner B to claim the land as his own.

Let's say Property A is sold, and Landowner A2 has the place surveyed and he complains to B about the use; B would understandably feel cheated after using the land as his own for so long. And maybe mowing the lawn and selling apples isn't a big deal, but you could envision a more serious encroachment, where significant money was invested in a building or something. The law basically requires the owner of Property A to be minimally diligent in paying attention to his land. Owner A doesn't have to do very much to maintain control of the land but he has to do SOMETHING at least once in a long while. Kaycee1217 (talk) 15:05, 7 June 2009 (UTC)

No "Why"

The discussion above about adverse possession being unjust got me thinking about why there isn't anything in this article (like in the header) describing why adverse possession exists. It may seem unjust, but from my understanding (that is, from an American law student's perspective) is that it exists to uphold the presumption that alienation of land is a good thing. We (in America) don't like land being held in large estates perpetually. Therefore, we give the "common man" the chance to adversely possess the "sleeping owner," who in all likelihood isn't watching over the vast amount of land he owns for a long period of time. Is it the same in England? I'd like to refine that statement and add it to the header if no one objects. What does everyone think? RMelon (talk) 22:11, 8 December 2007 (UTC)

That may be right in the US, but its not the origin of the rule. Adverse possession originates in the principle of limitation of action. That is that the courts won't look back beyond a certain time horizon in the past in order to establish existing rights. That is a practical measure to avoid endless disputes of what may have happened decades or centuries ago. It also means that, after a while at least, everyone can be certain about who owns property even if there might have been doubt in the past. Certainty of ownership is something much sought after in systems of title that do not involve title registration. The European Court of Human Rights has thought that adverse possession is not properly justified for registered land, though that only has historical interest as the basic principle has been modified to something much more owner friendly. Francis Davey (talk) 16:45, 4 June 2009 (UTC)

PS - I'm a lawyer and I know a lot about this. I rather gave up on wikipedia's legal articles for reasons I have explained elsewhere ad nauseum but am happy to help. I don't log in much anymore, but feel free to drop me an email if there's any point of law that needs clarification. It would be great to tidy up WP's law articles (which are mostly dreadful) but I don't see it happening any time soon. Francis Davey (talk) 16:47, 4 June 2009 (UTC)

It seems that there are multiple justifications for the doctrine. The justifications for limitation of actions in general are those that Frances Davey has outlined but there are extra specific justifications for adverse possession laws in respect of land, which do not only extinguish the dispossessed landowner's right of action but also his title to the land. These include the desirability in ensuring the alienability of land which is a fundamentally important but finite commodity and, as FD says, certainty of ownership. A "Justification" section would be nice but would be fraught with difficulties as all this illustrates; what were the justifications, what are the justifications, which ones do we discuss, how do they overlap?--Bunburya (talk) 18:57, 8 June 2009 (UTC)

Recent Examples

Undid edits where someone removed the recent examples section. Please suggest modifications to the text before just deleting it.

TwakTwik (talk) 01:55, 9 December 2007 (UTC)

• The material concenrs living individuals and seems to serve little purpose in documenting the legal concept of adverse possession. Citing this as the sole "recent example" looks a lot like a dig at the subjects. I think we can do without it. Guy (Help!) 18:37, 9 December 2007 (UTC)
• Agree with JzG. Even if useful, it is probably not the most legally relevant case, and the detail was such as to be overall negative rather than legally helpful. FT2 ^{(Talk | email)} 18:47, 9 December 2007 (UTC)

We need to find more examples and document them. Its a start. I am ok with changing the text and removing the names, but it is important to note that this centuries old law is still in effect. How about this:

"Recent examples of adverse possession include a land dispute in Boulder, CO. [link]".

The point is that this is not a law that gets exercised often, when it happens, its news.

TwakTwik (talk) 20:42, 9 December 2007 (UTC)

Actually, the news is that it's getting exercised more and more often. There are currently (as of July 6, 2008) TWENTY-FIVE adverse possession cases in Boulder County, Colorado, alone! A law was recently passed there because of the outrage at the Boulder case cited above. It seems like quite an omission not to include this. 52.129.8.49 (talk) 22:29, 9 July 2008 (UTC)

Private v public land

I am informed that adverse possession cannot occur (in England and Wales) on public land. By this i understand to mean highway and especially highway in existence before 1835 and/or before the Finance Act of 1910 which documented the then extent of the highways.

Can this be confirmed? If this is correct then it should be noted in the main article. Salisbury-99 (talk) 11:06, 11 September 2008 (UTC)

I don't believe it is true. That's my assessment of the (albeit complex) state of the authorities. In fact I blogged (twice) about two recent cases that illustrate my point. In one case the trial judge thought (wrongly) that authority did prevent adverse possession of a highway something I make clear in my blog was mistaken. In another the fact that it was possible to adversely possess the bed of the river Thames (despite it being subject to public rights of navigation) was rightly conceded by counsel for the river authority Charles Harpum a former law commissioner and leading authority on property law. The former case is being appealed which makes me feel a little better. If you keep sheep on a field that is not yours (and is now unregistered) then you adversely possess it, the fact that there's a public footpath running over it should not interfere with that. Francis Davey (talk) 16:42, 4 June 2009 (UTC)

One requirement for adverse possession (at least in Oregon) is "exclusive use." It'd be kind of hard to prove exclusive use of a highway. Seems to me that any sort of maintenance work done by the proper owner of public land would extinguish the adverse claim. Kaycee1217 (talk) 16:45, 7 June 2009 (UTC)

There's a principle of our law that you only have to show sufficient possession as would be consistent with the kind of land (if you read my blog posts you'll see I refer to it) so to adversely possess a marsh you might only need to hold a grouse shoot over it rather than build on it. What that means is that you can adversely possess (say) a footpath over a field by grazing sheep on it (a normal way to adversely possess a field) while still permitting the public to pass over it. Where a highway has been adopted (in a certain capacity) by a highway authority (as most roads have) there's a statutory vesting of the surface into the hands of the authority which cannot be overriden by adverse possession, making AP of such a road very difficult indeed (essentially impossible, though the airspace or ground beneath might be possible). Francis Davey (talk) 17:08, 7 June 2009 (UTC)

I am the lawyer that Kaycee works for... and this adverse possession discussion is fascinating because the US built its statutory and non-statutory law on English law. Because each state is sovereign in certain areas (this would involve a constitutional discussion), law has developed differently in each state, but for the most part, all of the states (except Louisiana)share the basics. In the US, a person can never make a claim against the US government for adverse possession. The US has vast expanses of open land, and the federal government has held these lands since the time of westward expansion.

Think about the Homestead Act - the Federal government owned virtually all of the land in the territories west of the Mississippi, and needed people to go there. The law was simple... you get yourself out there via the Oregon Trail, etc., stake your claim to land up to 340 acres, by living there so many months each year and improving at least a percentage of the land by clearing it, fencing it,... something fairly minimal, then after 2 - 5 years of this, you file your claim for that land at the local territorial government office, and it was yours. There was still land available in the western US in the early 1900's. In the US, we can trace the origins of ownership quite easily compared to the rest of the world.

The federal government owned all of the land west of the Mississippi (and in earlier days, the individual state or commonwealth governments owned all of the land in the eastern portion of the US that had not been specifically granted to a person by the King of England). The federal or commonwealth governments remained as sovereign owners over all land not specifically claimed pursuant to that state's or the federal government's laws. Early in our history, the federal government saw the importance of maintaining sovereignty over all navigable waterways. The US government still maintains this ownership and dominion, and all navigable waterways are under the authority of the US Army Corps of Engineers.

The framers of the US Constitution wrestled with what powers should be held by the states because they wanted to ensure that the federal government did not get too heavy handed. All water that the US government does not consider to be navigable, is under the jurisdiction and control of each state. This is where it get gets tricky. In Minnesota for example, the state owns the beds and banks of all rivers and all lakes of a certain size (so ponds are excluded, generally). In Oregon, the state does not own the beds and banks of lakes. They are owned by individuals unless the state or federal government owns them. The state government in Oregon, however, owns the beds and banks of all non-navigable streams and rivers, but that law is tempered by private riparian rights. Oregon went one step further in the 1960's under Governor Tom McCall and gave the state government sovereignty over the Pacific coastline up to the line of mean high-tide. In contrast, California allows private ownership of beaches.

So, short answer... the beds and banks of navigable waterways are under US government ownership, and it is impossible to adversely possess US government land. In most states, there can be no claim of adverse possession to waterways and lakes or state owned land, or even county land or land held by a municipality. These state laws are difficult to generalize, however, because each state may treat land held by a government unit a little differently.

Kaycee1217 (talk) 20:59, 7 June 2009 (UTC)

Thank you very much, that injects some very useful information. Conversely in England and Wales it is quite possible to adversely possess land owned by anybody, including the Crown. The Crown still owns some land (some of it quite extensive) and therefore has to be careful to make sure it is not adversely possessed and lost just like any other land owner.

A curiosity is that we never abolished the feudal system we just let it fade away (this is typical of our approach to land law). Its existence makes almost no difference, but there is one subtlety that comes up for Crown land. The Crown, as the top of the feudal tree, need not hold any estate in land it owns. This is an alien concept outside the UK I think, but the point is simple. A "freehold" is really shorthand for the estate "fee simple absolute in possession", that is the ownership "in fee" as a feudal subject of the Crown but of course the Crown can hold land without any feudal grant (without fee) so there's quite a bit of land in the Crown Estates that is not freehold land, it is held by the Crown "in demesne".

When we started registering land under a sort of Torrens title system, we only set the system up to register estates (freehold, leasehold and now commonhold) so the Crown couldn't register any of the land in demesne because there is no estate. This would have meant that under the new land registration system we have (that makes adverse possession next to impossible to do by stealth) the Crown would have continued to be vulnerable, so as of the beginning of this century the Crown has been able to register its demesne lands.

This has practical application because about 700 estates each year become demesne land by the process of escheat - usually when a company goes into liquidation or is dissolved and the Official Solicitor decides that the land is onerous and not worth taking up under bona vacantia. So the supply of demesne land does not run out.

Sorry for that digression - on rivers ownership is complicated but often in the hands of executive agencies (like the National Rivers Authority) or in corporations like the Port of London Authority, but there is plenty in private hands and all of it (it would seem) is open to adverse possession. The moral I think the land registry would like to get out there is - better register that river 8-). Francis Davey (talk) 08:14, 8 June 2009 (UTC)