Adverse possession becomes ownership

While real estate is not an item a thief may pick up and carry off, the ownership or rights in ownership to real estate is capable of being stolen — if the thief is not first caught trespassing and ejected. The means by which the law justifies a private taking of another’s ownership is known as adverse possession.

Adverse possession is the only means by which the law will take 100% of an individual’s legal or equitable ownership interest in a parcel of real estate and give it to another individual without compensation.

The doctrine of adverse possession is based on a social and economic rationale suggesting real estate is not to lie idle. An individual who puts another’s land to use without interference or compensation and pays taxes imposed on the property — ad valorem — is allowed in time to enjoy the benefits of continued long-term possession, namely ownership.

The “use it or lose it” rationale has remained unchanged since its inception, when the doctrine of adverse possession was established to dispossess medieval lords of their stranglehold on fertile farmland in England.

To establish title by adverse possession, an occupant needs to show:

  • their possession is based on a claim of right or color of title;
  • they have occupied the property in an open and notorious way which constitutes reasonable notice to the record owner;
  • their occupancy is hostile and inconsistent with the owner’s title;
  • they have been in possession for a continuous and uninterrupted period of at least five years; and
  • they have paid all taxes assessed against the property during their occupancy. [ Code of Civil Procedure §§318 et seq.]

An occupant’s ownership by adverse possession based on a claim of right avoids the statute of frauds writing requirement. To obtain title by adverse possession based on a claim of right, the occupant has, by the nature of adverse possession, no written documentation or evidence of title. Essentially, the adverse possessor is a trespasser in possession of the owner’s property without any good faith belief they hold title to the property. [Brown v. Berman (1962) 203 CA2d 327]

Thus, in the case of adverse possession by a claim of right, the owner of the property has not orally conveyed title to the real estate to the occupant. The occupant is a trespasser until their conduct on the property, time in possession and payment of all property taxes meet the requirements for them to obtain a court ordered transfer of title by adverse possession.

Alternatively, title by adverse possession based on a color of title usually occurs when the occupant’s title is based on a defective deed.