Adverse possession


Adverse possession in common law, and the related civil law concept of usucaption, are legal mechanisms under which a person who does not have legal title to a piece of property, usually real property, may acquire legal ownership based on continuous possession or occupation without the permission of its legal owner.
It is sometimes colloquially described as squatter's rights, a term associated with occupation without legal title during the westward expansion in North America, as occupying real property without permission is central to adverse possession. Some jurisdictions regulate squatting separately from adverse possession.

Description

In general, a property owner has the right to recover possession of their property from unauthorised possessors through legal action such as ejectment. However, many legal systems courts recognize that once someone has occupied property without permission for a significant period of time without the property owner exercising their right to recover their property, not only is the original owner prevented from exercising their right to eject, but a new title to the property "springs up" in the adverse possessor. In effect, the adverse possessor becomes the property's new owner. Over time, legislatures created statutes of limitations setting a time limit for how long owners have to recover possession of their property from adverse possessors. In the United States, for example, these limitation periods vary widely between individual states, ranging from five years to 40 years for real property, or three to five years for personal property.
Although the elements of an adverse possession action differ by jurisdiction, a person claiming adverse possession in a common law system is usually required to prove non-permissive use of the property that is actual, open and notorious, exclusive, adverse and continuous for the statutory period. The possession by a person is not adverse during periods when they are in possession as a tenant or licensee of the legal owner.
Civil Law jurisdictions may recognize a similar right of acquisitive prescription. For example, the French Code Civil 2258 et. seq. recognizes that title may be acquired through thirty years of "continuous and uninterrupted possession which is peaceful, public, unequivocal, and as owner." It is related to the Roman law concept of usucaption or usucapio.
In Denmark, the concept was first mentioned as "Hævd" in Jyske Lov in 1241, though only regulating between peasants and the church, with an asymmetric time limit of 30 years for the church, and 40 years for the peasant. In 1475, the 40 year limit was ruled to apply between farmers as well. In 1547 a rule was passed to change this to 20 years for everyone. The rule was later adopted into the Danish Code, published in 1683, this specific part still being in force today. The Norwegian Code from 1688 contains a similar provision.
Personal property, traditionally known as chattel, may also be adversely possessed, but owing to the differences in the nature of real and chattel property, the rules governing such claims are rather more stringent, and favour the legal owner rather than the adverse possessor. Claims for adverse possession of chattel often involve works of art.

History

In Roman law, usucapio laws allowed someone who was in possession of a good without title to become the lawful proprietor if the original owner did not appear after some time, unless the good was obtained illegally. Stemming from Roman law and its successor, the Napoleonic Code generally recognizes two time periods for the acquisition of property: 30 years and some lesser time period, depending on the bona fides of the possessor and the location of the parties involved.
Parliament passed England's first general statute limiting the right to recover possession of land in 1623, the Limitation Act 1623. At common law, if entitlement to possession of land was in dispute, the person claiming a right to possession was not allowed to allege that the land had come into their possession in the past at a time before the reign of Henry I. The law recognised a cutoff date going back into the past, before which date the law would not be interested. There was no requirement for a defendant to show any form of adverse possession. As time went on, the date was moved by statute—first to the reign of Henry II, and then to the reign of Richard I. No further changes were made of this kind. By the reign of Henry VIII the fact that there had been no changes to the cutoff date had become very inconvenient. A new approach was taken whereby the person claiming possession had to show possession of the land for a continuous period, a certain number of years before the date of the claim. Later statutes have shortened the limitation period in most common law jurisdictions.
At traditional English common law, it was not possible to obtain title to property of the Crown by means of adverse possession. This principle was embodied by the Latin maxim nullum tempus occurrit regi. In the United States, this privilege was carried over to the federal and state governments; government land is immune from loss by adverse possession. Land with registered title in some Torrens title systems is also immune, for example, land that has been registered in the Hawaii Land Court system.
In the common law system of England and its historical colonies, local legislatures—such as Parliament in England or American state legislatures—generally create statutes of limitations that bar the owners from recovering the property after a certain number of years have passed.

Overview by country

Time required to acquire land via adverse possession by country

  • * 20 years for bad-faith possession
  • * 10 years for good-faith possession
  • * Unregistered land: 12 years or 15 years
  • * Registered land: Not allowed
  • * Crown land: 30 years, not allowed
  • * 5 years. Not allowed for public land.
  • * Article 183 and 191 of the Brazilian Constitution
  • * 10 years for bad-faith possession
  • * 5 years for good-faith possession
  • : Not allowed
  • * 30 years for bad-faith possession
  • * 10–20 years for good-faith possession, depending on whether true owner lives in the territory of the Court of Appeal where the land is situated
  • : 30 years
  • * 20 years for bad-faith possession
  • * 10 years for good-faith possession
  • * 12 years for private property
  • * 60 years for public property
  • * Section 7 of the Limitation Ordinance
  • : 15 years
  • * 12 years for private property
  • * 30 years for public property
  • * 12 years for private property
  • * 30 years for public property
  • * 20 years for bad-faith possession
  • * 10 years for good-faith possession
  • * Article 162 of Civil Code
  • * 10 years for bad-faith possession
  • * 5 years for good-faith possession
  • * 20 years for bad-faith possession
  • * 10 years for good-faith possession
  • * Unregistered land: 12 years
  • * Registered land: 20 years
  • * Unregistered crown land: 60 years
  • * Registered crown land: Not allowed
  • *
  • ** Unregistered land: Not allowed
  • ** Registered land: 10 years
  • ** Crown land: 60 years
  • * 10 years for bad-faith possession
  • * 5 years for good-faith possession
  • * 30 years for bad-faith possession
  • * 20 years for good-faith possession
  • * Article 172 of Civil Code
  • * 20 years for bad-faith possession
  • * 15 years for good-faith possession
  • * 12 years for good-faith possession
  • * The land must be in possession before 1 March 1982, 12 years before adverse possession is abolished with effect from 1 March 1994 as per section 50 of the Land Titles Act.
  • * Section 9 of the Limitation Act 1959 and Section 50 of the Land Titles Act 1993
  • * 30 years for bad-faith possession
  • * 10–20 years for good-faith possession, depending on whether true owner is present or absent in the country
  • * 20 years for bad-faith possession
  • * 10 years for good-faith possession
  • * Unregistered land: 30 years
  • * Incorrectly registered land: 10 years
  • * Registered land: Not allowed
  • * 12 years for unregistered land or land where the squatter can show 12 years adverse possession prior to 13 October 2003
  • * 10 years for registered land if the true owner does not file a counternotice after being notified at the end of the period

    England and Wales

Adverse possession is one of the most contentious methods of acquiring property, albeit one that has played a huge role in the history of English land. Historically, if someone possessed land for long enough, it was thought that this in itself justified acquisition of a good title. This meant that while English land was continually conquered, pillaged, and stolen by various factions, lords or barons throughout the Middle Ages, those who could show they possessed land long enough would not have their title questioned.
A more modern function has been that land which is disused or neglected by an owner may be converted into another's property if continual use is made. Squatting in England has been a way for land to be efficiently utilised, particularly in periods of economic decline. Before the Land Registration Act 2002, if a person had possessed land for 12 years, then at common law, the previous owner's right of action to eject the "adverse possessor" would expire. The common legal justification was that under the Limitation Act 1623, just like a cause of action in contract or tort had to be used within a time limit, so did an action to recover land. This promoted the finality of litigation and the certainty of claims. Time would start running when someone took exclusive possession of land, or part of it, and intended to possess it adversely to the interests of the current owner. Provided the common law requirements of "possession" that was "adverse" were fulfilled, after 12 years, the owner would cease to be able to assert a claim. Different rules are in place for the limitation periods of adverse possession in unregistered land and registered land. However, in the Land Registration Act 2002 adverse possession of registered land became much harder.
In recent times the Land Registry has made the process of claiming adverse possession and being awarded “title absolute” more difficult. Simply occupying or grazing the land will no longer justify the grant of title: instead, the person in adverse possession must demonstrate commitment to own and utilize the land to the exclusion of all others.
Another significant limit on the principle, in the case of leases, is that adverse possession actions will only succeed against the leaseholder, and not the freeholder once the lease has expired.