The Doctrine of Adverse Possession: Gaining or losing land by conquest.

Last month we covered the Doctrine of Title by Acquiescence.  The law of acquiescence pertains to adjoining property owners who are either mistaken where the line between properties are, or agree that a fence or barrier that is not on the legal boundary line is to be considered the legal boundary line.  So, under the law of acquiescence, land can be gained or lost by mistake or by agreement.

            Another doctrine where land can be gained or lost is the Doctrine of Adverse Possession, sometimes referred to as “squatter’s rights”.  Adverse Possession occurs where a person in possession of land owned by someone else may acquire valid title to it, so long as certain requirements are met.  It arises from English common law, where land in England was continuously changing hands not via purchases, but conquest, pillage, theft, etc.  The theory was that if you could show you possessed land long enough, your title to the land would not be questioned.

            When our country was founded, although there was less conquest, pillage and theft, there were issues with homesteading that led to the rise of Adverse Possession being applicable.  This would occur when people would make a claim to wide swaths of land, often times when just passing through, and never use the land.  From a public policy standpoint, it was detrimental to have land that was owned, but not being used.  So, Adverse Possession became a way to ensure that if a person was not going to use their land, someone else could.  In a sense, Adverse Possession still carries the basic principle of conquering of the land of another, albeit more peacefully nowadays.

            Under the common law, there were five requirements to Adverse Possession.   First, a person must physically use the land as a property owner would, in accordance with the type of property.  The person must farm, log, raise livestock, etc.  Court cases have held that just walking or hunting the property does not establish possession.  Second, the action must be “hostile”, or against, the wishes of the owner.  If the owner gives permission, then the action is not “hostile”.  Third, the action must be “open and notorious” in that the person’s actions are sufficiently visible and apparent that it would give notice to the legal owner that someone may assert a claim.  Fourth, the person must use the land for the required statute of limitations time period.  In the present day, the time required among the states ranges from 5 years to 30 years.  Fifth, and finally, the period of use must be continuous.  If the owner kicks the person off the property, the time period starts all over again.

            Indiana, like most states, follows the common law requiring:  (1) Control—The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land  (2) Intent—The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner  (3) Notice—The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control  and, (4) Duration—the claimant must satisfy each of these elements continuously for the required period of time, which in Indiana is 10 years.

However, Indiana, and about 20 other states, adds another requirement, which is that the claimant must pay the taxes on the real estate.  Having to pay the taxes historically has been the show stopper in a lot of cases due to the fact that the true owner may not be using the property, but if he/she is paying the taxes, the claimant is unable to do so, and thus the full requirement of Adverse Possession are not met.  But, the issue of paying taxes changed in 2015 when the Indiana Supreme Court in Celebration Worship Center, Inc. v. Patrick Tucker, et. al., addressed a situation where a homeowner and a Church owned property next door to each other, which was separated by a grassy area and gravel driveway.  Although title to this grassy area and gravel drive was originally conveyed to the Church, the homeowner claimed ownership under the doctrine of adverse possession.  The Church argued that the homeowners did not pay all taxes on the property.  The homeowners admitted they did not actually pay any taxes or special assessments on the disputed parcel.  However, the homeowners contended they had satisfied this statutory element because they “believed” the disputed real estate to be a part of their own property for which the homeowners did pay the taxes.  The Court held that “This reasonable and good faith belief substantially complies with the statutory tax payment requirement.”  So, Indiana, and quite likely other states, has eased the taxpaying requirement.

            In Michigan, the same common law requirements are required, but the period of possession is 15 years.  Interestingly, in Michigan the law contains no requirement that the trespasser's entry and continued possession of the property be done with knowing or intentional hostility.  Thus, a “hostile” intent is not needed. In Ohio, the common law requirements exist, and the period of possession is fairly long, being 21 years.  However, there is no requirement to pay taxes.  Illinois follows the common law requirements and has a 20 year time requirement.  But, there is another way in that a court can award title to a trespasser who has a deed indicating ownership of the land, even if the deed is defective or mistaken, and that trespasser has paid proper property taxes on the land for seven consecutive years. 

            The take away from all this is that, in this day and age, it is rare that someone will attempt to invoke adverse possession on a large tract of land.  For example, unless someone is an absentee landowner and never visits their real estate, it is highly unlikely that someone is going to simply come on the land, treat it as their own, and do so for the required time period before the owner finds out and gives them the boot.  Mostly, Adverse Possession pertains to situations where a fence is not in the correct location, adjoining landowners are mistaken about the legal boundary line, and so forth.  However, depending on the circumstances, fairly large amounts of land can be gained or lost under Adverse Possessions. 

            As was stated in the last article, more and more modern surveys using GPS are showing the inaccuracies with older surveys.  When purchasing real estate, or if there is doubt as to the exact legal boundary, a fresh survey can be a very good investment.  This will avoid being on the losing side of the Doctrine of Adverse Possession.

          John J. Schwarz, II, has been farming for as long as he could reach the clutch pedal on his dad’s 4020 and has been an agricultural law attorney for 14 years. He can be reached at 574-643-9999, john@schwarzlawoffice.com, or visit him at www.thefarmlawyer.com.

  These articles are for general informational purposes only and do not constitute an attorney-client relationship.    If you have a specific legal issue, you should contact an attorney.