This Land is Your Land; This Land is My Land.

This Land is Your Land; This Land is My Land.

When I was in law school at the University of North Carolina, I remember learning and studying and sweating out an exam question regarding the principle of adverse possession. I also remember thinking there was no way I was ever going to need all this weird real property law in the 20th and the soon to be 21st centuries. For 20 years or so I was right. Now, suddenly, I have three adverse possession issues pop up in as many months.

Adverse possession is an old area of law where a person can take title and ownership of real estate just by taking it. The principle behind this type of squatter’s rights is to help clean up old titles and ancient property disputes, especially in the days not so long ago with mostly rural areas, local landmarks, and no computer assistance for the register of deeds. Of course, the law also doesn’t just want people stealing land by squatting for a few months. The law of adverse possession has developed to take into consideration these opposing ideas.

If you want to take title to a property by adverse possession, you have to prove a number of elements. First, you have to prove that there was an actual possession of the property. You have to use, possess and control the property as if it were your own. How you do that depends on the type of property it is. You can’t just intend to own it or just tell other people you own it, you have to actually possess it.

Second, the actual possession has to be adverse and hostile. This is the legal definition of hostile, which is different from what a non-lawyer would consider hostile. You are probably picturing an old mountain man in overalls and a shotgun telling you to “git off my property!” But hostile in the legal sense does not mean any animosity or ill will, or that the persons were enemies, or that the persons even knew each other. Hostile in this context simply means that the use is done without permission of the owner and is done so in such a way to give notice that you are claiming exclusive right to the property. This is the hardest element for a non-lawyer to understand not only because of the different use of “hostile” but because of the concept of permissive use. If I give you permission to use my property, then your use isn’t hostile. A person who is fighting to keep land from being adversely possessed wants to say that they did everything they could to keep the adverse possessor off the property. But if they took steps to keep the adverse possessor off the property by posting signs, gating a road or other means, and the adverse possessor keeps getting on anyway, that is evidence of hostile intent. If on the other hand the legal title holder of the property allows them to use his property (permission he can revoke any time) then the use is not hostile. When you give somebody permission to use your property, you are telling them that you have the power to give permission because you own it.

Third, the actual possession has to be “open and notorious” and under “known and visible lines and boundaries.” This prevents people from hiding their actual use and not allowing the title owner from realizing that somebody else was claiming the property as their own.

Fourth, the above requirements must be maintained uninterrupted for a period of time. That period is 7 years with “color of title” and 20 years without “color of title.” Color of title means you have an incorrect deed that you have relied on in maintaining your actual possession. Without color of title means you do not even have an incorrect or false deed showing the property you are claiming adversely. That period of time can be up to the present or it can be a period of time in the past, as long as it was continuous and uninterrupted. If the properties change owners, but the elements remain intact, the use is still considered uninterrupted.

The person claiming the property by adverse possession has the burden of proof. They have to prove all these elements exist more likely than not.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation. Please contact him at (910) 772-1678.