Title By Adverse Possession, The Myth

Title By Adverse Possession is a myth.

The requirements are stringent, and you probably can’t satisfy them.

I read, and hear, a lot about “title by adverse possession,” and when I do, it is usually very obvious that the person providing the “information” knows nothing about the Law.

I’m not trashing a person who knows nothing about the Law, that’s not my point.  We all know about different stuff.  I can’t play the piano, and I can’t back up a trailer.

My point is that if you are making statements about the Law, you should not just be repeating something that you read or heard somewhere.

That is irresponsible.

TITLE BY ADVERSE POSSESSION MYTH

In the real world, the occasions where someone actually obtains title to real estate by claiming ownership by adverse possession are almost monexistent.

Yes, there is a provision in the Law for doing so.  I’ve used it, and it works.

But the requirements are so difficult to meet that it virtually never happens.

However, the process is very interesting, and that’s what we will be discussing today.

As I said, a popular misconception of Real Estate Law is that one of the ways people obtain title to property is by Adverse Possession.

This almost never happens.

During the 16 years that I operated a Title Insurance Company, I did title searches on properties, multiple times each day, each search involving looking at maybe 20-30 documents in the chain of title.

I never saw a piece of Real Estate where anyone in the chain of title obtained that the title under the law of Adverse Possession.

Not one.

LEGAL REQUIREMENTS FOR TITLE BY ADVERSE POSSESSION

Adverse Possession is a means of acquiring title to real estate by establishing what the Law describes as “actual, open, notorious, exclusive, hostile, and continuous occupancy” of the real estate for a certain period of time.

It sounds possible if you say it real fast.

But it almost never happens, and looking at each individual element will show you why it almost never happens.

  • “Actual” means that you must actually be in possession of the property, either living there or using the property on a regular basis.
  • “Open and notorious” means that you are possessing the property in a manner that is clear for everyone to see, and that your possession of the property demonstrates to an observer that you believe that you are the owner because you are acting like the owner of the property would act.
  • “Exclusive” means that you have not permitted anyone else to enter the property, and that you have attempted to prevent them from doing so, such as by fencing the property and putting up a locked gate, which also contributes to the “notorious” requirement.
  • “Hostile” means that you have resisted any claims by any other person to the property.
  • “Continuous” means uninterrupted, and some States require possession periods up to 40 years.

But the primary stumbling block to claiming title to property by adverse possession is that you must first be making your claim based on some legitimate “right of title,” such as a signed document, recorded in the real property records or probate records.

So you cannot just go to the Courthouse and look in the records and pick a bunch of properties and claim them.

Or drive by a vacant lot, and decide to start paying taxing on it and mowing it, and then say that it is yours.

In the end, you must have a document filed in the Real Property Records, or Probate Records, of the County where the property is located, and it must establish your claim to ownership of the property on the basis of adverse possession.

And, after that, you then have to meet the requirements explained above.

Then, the actual process of acquiring Title By Adverse Possession involves filing a lawsuit and asking the Court for a Declaratory Judgment establishing your ownership of the property, you can’t just make that determination yourself.

And in my more than 40 years of practicing law, I have seen it happen a couple of times.

The situation varies among States, but in the ones where I am licensed to practice, and where I attend the required number of Continuing Legal Education (CLE) courses each year, the State Bars are not even including the subject in the seminars.

It is just not part of the legal landscape.

But your State might be different, so I don’t want you to just take my word for it.

You should still look into it.

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RESOURCES

I touch on this same concept in more than one of my books, but the one with the most detailed information is “Do This, Not That!”  If you would like to preview it, you can go here on this website to look at it first, use the 3D Flip Reader to look at the Contents and read the first few chapters.

The paperback is available on my Amazon Author Page, along with my other books.

And I have related Articles about real estate investing and other real estate matters from other perspectives on my LinkedIn Page.

I am also active on Quora.com where I have answered over 300 questions, and they have almost 3 Million views.

If you happen to be doing, or if you are considering doing, a Section 1031 Like Kind Exchange, then you should start with a Dictionary, and I have done one, in 3 separate Blog Posts here: Part 1, Part 2, and Part 3.  And I have a lot of material for you to consider on my S1031 Exchange website.

You should always check out the credentials of anyone, like myself, who you are relying on for accurate information by looking closely at their Biography.  Here’s mine.

title by adverse possession

DISCLAIMER

I am an Attorney licensed to practice in Texas, North Carolina, Virginia, and the District of Columbia.  But I am not your Attorney.  I would be honored if I were, but I am not.  Reading this Blog does not created an attorney-client relationship between us.  Internet content should not be used as a substitute for the advice of a competent Attorney admitted or authorized to practice law in your state or jurisdiction.

 

August 31, 2022

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