Adverse possession is legalized theft over time. The doctrine of adverse possession obligates the title holder of land to eject, within a statutorily prescribed period, a wrongful possessor of the land. Provided certain other elements are satisfied, a title holder who fails this obligation will lose title to the land in question to the adverse possessor.
Sleeping Theory: Slothful or lax owners, who ignore people using their land in brazen violation of legal right, deserve to be penalized. By failing to bring a timely action to recover possession they create a problem: adjudicating stale claims is very difficult - witnesses die and disappear, memories fade, documents are lost. The slothful owner ought to bear the risk of losing his property if he does not care enough to assert his ownership. Some argue that stripping the slothful owner comports with his reasonable expectations. In a sense, use it or lose it.
Earnings Theory: Have to develop the land and not just own it. People who use land productively and beneficially for a long time ought to be rewarded. Even though the land is owned by someone else, the actual possessor has invested time and effort in making it productive. After a long enough period, the adverse possessor has earned some interest in the land. When coupled with the sleeping theory, the justice of cutting off the true owner's claim seems even stronger. Psychologically if not legally the adverse possessor develops expectations of continued possession, which expectations are met by the doctrine of adverse possession.
Stability Theory: Adverse possession enables disputes or doubts about land titles to be cleared expeditiously by delivering title to the person who has occupied the land as if she were the owner for a long time without objection.
ELEMENTS AND REQUIREMENTS
Adverse possession is dealt with today primarily by statute. Whether it's common law or by statutes, the usual elements are: Exception: time periods for occupancy.
1. Actual Entry Actually on the land to claim it and it puts true owner on notice that his land is at risk. Which gives;
2. Exclusive Possession Cannot have two competing groups for same piece of land, must be exclusive. You have to be there;
3. Adverse under the claim of right (hostility to the title) Must be clear to the true owner that you are not there with permission and that you are there to take the land. If you have permission to be there, you are no longer hostile to the title and cannot adversely possess the title. Staying over lease period is not hostile because your original entry was not hostile..
4. Open (not hiding, readily visible) and Notorious (a more aggressive assertion of the claim - not just a fence but a brick wall, ejectment of trespassers, etc.) Must give true owner the opportunity to know that someone is on his or her land. And be there;
5. Continuous for statutory of limitations period. We don't want people losing their property right away and we want the adverse possessor to have to work for it.
Law in New York when claiming title without a written instrument:
1. Show property has been cultivated or improved;
2. That it's been protected by a substantial enclosure; and
3. The land has been used for the supply of fuel or timber for the use of husbandry or use by the occupant.
If you build a fence around an area and you occupy the area within the enclosure, even if you are not regularly using all of it, we will treat all of the area you have enclosed and thus separated off from other people as being subject to adverse possession if you otherwise satisfy the requirements with regard to some portion of the property.
The state of mind of the adverse possessor is irrelevant. He or she doesn't have to know the land is not theirs but they want to make it theirs. They don't have to mistakenly believe it is theirs to make it theirs. All they have to do is be there without the permission of the true owner and that will satisfy the adverse and with the claim of right, hostile to the title of the true owner requirement today.
The Modern Rule
Your mere presence on the land without the permission of the true owner is satisfaction of the element of hostility.
In Michigan, for example, if property taxes are not paid for three years, the property is put of for auction and sold to highest bidder. The amount of unpaid taxes and penalties is kept by the county, anything over and above that goes to the owner of the property but the buyer gets title. You can redeem the property within the statutory period (180 days in most places). You may have to pay redemption interest to the title owner.
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