Adverse possession is a legal concept that, in certain situations, allows one party who is occupying another party’s land to take legal ownership of that land. This concept originated in medieval English common law; it intended to make sure that land that was being used productively and maintained. If an absentee owner did not make use of their land for years, and another party ended up putting it to productive use (like growing crops), the occupying party could eventually gain ownership after a certain period of time.
Many jurisdictions around the world have their own legal requirements for adverse possession claims. Generally, the adverse possessor must demonstrate that they have continuously and exclusively occupied the property for a staturorily required time period. The occupation must be open and notorious; that is, visible to the public rather than in secret. This occupation must be hostile to the owner’s interst in the property. Hostile does not mean aggressive or violent in this context; it simply means that the adverse possessor cannot have been given permission by the owner to use the land. This ensures that a renter or guest cannot claim adverse possession. In some jurisdictions, the adverse possessor’s claim must be in good faith, meaning the adverse possessor must have thought they had legitimate ownership of the land. For example, if a fence has been incorrectly placed outside a property line for decades, causing one owner to believe they owned more of their property than they did, that owner could file a claim of adverse possession and possibly end up owning the land they mistakenly thought was theirs in good faith.
Though many states have a good faith requirement to claims of adverse possession, some do not. Colorado is a state that used to have no good faith requirement for adverse possession claims, until a major court case drew attention to the necessity of good faith requirements for adverse possession claims. This case was based on a dispute between two private citizens, one being a local judge. This judge–as a private citizen–made a path and put a few plants on his neighbor’s empty lot, and after the statutorily required time limit of 18 years, filed a claim for adverse possession. The judge ended up legally taking title to a third of the neighbor’s lot, a lot on which the neighbor had planned to build a house for retirement. The new property lines made it impossible for the neighbor to build a home, which ignited a years-long legal battle that received national attention. On appeal, the judge was given title to 12% of the neighbor’s property, rather than a third, but the public still viewed this judge’s adverse possession claim as manipulative and in bad faith. Colorado had no requirement that the adverse possessor act in good faith, so whether or not the judge had ill intent was beside the point. Shortly after this case was settled, Colorado passed a law that any claim of adverse possession must be in good faith.
Courts apply adverse possession cautiously because it transfers property rights without a voluntary sale or gift. If the legal requirements are satisfied and the true owner fails to take action within the prescribed time, the possessor may obtain title to the land through a court judgment. Supporters of adverse possession argue that it discourages neglect of property, while critics say it can unfairly deprive owners of their rights.
Adverse possession, in some form, is part of property law in many countries, though governments generally have strict standards to limit its use.
