Three-Minute Legal Talks: How does adverse possession work?
Adverse possession can be one of the most counterintuitive core doctrines in a law student’s education. Rooted in English common law, the legal principle can ultimately allow a trespasser to acquire ownership of someone else’s property when certain conditions are met. While these requirements vary by jurisdiction, courts generally look for a set of established elements — such as open, notorious and continuous use of the property over many years — before recognizing an adverse possession claim.
In the video, Monte Mills, Charles I. Stone Professor of Law, unpacks adverse possession, delving into the doctrine’s underlying rationale, why courts sometimes favor the land’s trespassers versus the title holders and tips property owners can use to protect their land.
Read the Transcript
Monte Mills (MM): I'm Monte Mills. I'm a Charles I. Stone Professor and Director of the Native American Law Center here at UW Law.
UW Law: What is adverse possession?
MM: It's a notion that someone, who is really a trespasser, might ultimately secure ownership of a piece of property, provided they sort of trespass in the right way. Laws across the country recognize if the trespasser uses the property in a particular way for a certain amount of time, then they may actually get ownership of that property, notwithstanding who owns it in the records or who might otherwise have a claim.
UW Law: How can ordinary use of someone else's property escalate into an adverse possession claim?
MM: The law does have certain standards for what an adverse possessor has to do or how they have to use the property, but for the most part, those standards really just require that the person use the property in the same way that other properties in the area or similar properties of that type would be used. In other words, what the idea behind adverse possession seeks to promote is that property actually gets used instead of just sits idle.
UW Law: Why does the law sometimes favor the person using the property over the person whose name is on the deed?
MM: The idea, again, goes back to this notion that the law should be promoting and incentivizing people using their property as opposed to just letting it sit there. And so by recognizing the rights of adverse possessors, in theory, at least, what the law is doing is supporting or prioritizing the claims of the people who are actually using the property, not just the people whose names might be on the deed.
UW Law: What does the law look for before it will let a long-time user claim ownership
MM: As a general matter, it really focuses on the types of use for that specific property. And usually there's a set of elements that the law considers. Generally, those include whether the use is open, notorious, hostile, exclusive and for this statutory period. That statutory period can vary too, but usually it's seven or 10 or maybe 12 or 15 years. It has to be for a longer period than just a few days or a few months. And the reason those elements are important and generally consistent across jurisdiction is they want to ensure that the adverse possessor’s use is knowable, is available for people to recognize, and perhaps for the real owner, or the record owner, to take action to protect their property interest from an adverse possessor. It also seeks to ensure that the adverse possessor is actually putting the property to use like it's actual use that is open and known to others and exclusive to other users. So it's not as if an adverse possessor could be one of many people who are using the property in the same way.
UW Law: What simple steps can a property owner take to prevent someone from getting rights through adverse possession?
MM: Basically, because what adverse possession is about is who is actually using the property, what it encourages property owners to do is pay attention more or less. They have to check on their property. They have to use their property. They have to make sure that no one else is using it in a way that might be meeting those elements that the jurisdiction establishes for adverse possession, so that maybe may require just showing up on a regular basis and checking out the whole property to be sure if anybody is there, if anybody's using it in a way that the owner themselves isn’t using, posting No Trespassing signs, evicting people, or making sure people know that they don't have a right to use it and they can't be there, and that that record owner is really paying attention to and sort of policing the boundaries of their property to preclude and prevent anybody else from meeting those elements of adverse possession.