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The elements of an adverse possession claim

On Behalf of | Jul 29, 2020 | Real Estate Litigation

Adverse possession is a legal concept governing the possession of land owned by someone else. The adverse possessor acquires valid title to the property in question as long as he or she has the land for the length of time dictated by the state statute and meets all common law requirements. 

The doctrine of adverse possession helps encourage landowners to be more responsible about their properties as a way to avoid land waste and helps align land title disputes when there is a difference between the official records and how people use the property in reality. An effective adverse possession claim meets all five required elements. 

Continuous possession

A single person must have continuous possession of the land. The adverse possessor uses the property for an ongoing and uninterrupted time. He or she must use the property as the true owner would. For example, seasonal use of a vacation home over the course of many years is acceptable because that is how the owners would use it too. 

Hostile possession

Possession of the property is hostile when it infringes on the rights of the true owner. The adverse possessor must have awareness of trespassing, occupy the land or make an honest mistake. An example of an honest mistake is if a person relies on an incorrect deed. 

Open and notorious possession

The person’s act of trespassing cannot be secret or sneaky. He or she has to openly act like the owner of the property. The adverse possessor’s actions put the true owner on notice about the trespassing. 

Actual possession

The adverse possessor must actually physically possess the property and treat it as his or her own. Merely planning to occupy the land does not count. 

Exclusive possession

The person’s possession of the property must remain exclusive, meaning that he or she does not share control of the property with anyone. The adverse possessor keeps others off of the land, including the owner. 

The period required for occupation of adversely possessed in California is five years and the person must also pay taxes during that time.