Property law: Acquisition - Adverse possession (Part 2 of 2) Hostile possession

Hostile possession.

The disseisor must have entered or used the land without permission from the true owner. The disseisor's motivations may be interpreted by the court in several ways, depending upon state law and precedent:

Objective view – the land was used without true owner's permission and in a manner inconsistent with true owner's rights.

Bad faith or intentional trespass view – the land was used with the adverse possessor's subjective intent to disregard or violate the actual property owner's rights.

Good faith view – a few states require that the party claiming adverse possession must have mistakenly believed that it is their land.

Some jurisdictions permit accidental adverse possession, as might occur as the result of a surveying error that places the boundary line between properties in the wrong location.

Renters, hunters or others who enter the land with permission are not taking possession that is hostile to the title owner's rights. (mistaken possession in some jurisdictions does not constitute hostility)

Open and notorious use.

The disseisor must possess the property in a manner that is capable of being seen. That is, the disseisor's use of the property must be sufficiently visible and apparent that it gives notice to the legal owner that someone may assert claim, and must be of such character that would give notice to a reasonable person. If the legal owner has actual knowledge of the use, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.

Continuous .

The disseisor claiming adverse possession must hold that property continuously for the entire statute of limitations period, and use it as a true owner would for that time.

Generally, the disseisor's openly hostile possession must be continual (although not necessarily constant) without challenge or permission from the lawful owner, but breaks in use that are consistent with how an owner would use the property will not prevent an adverse possession claim. Occasional activity on the land with long gaps in activity fails the test of continuous possession; courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If at any time during the statute of limitations period, the true owner ejects the disseisor from the land either verbally or through legal action, and the disseisor then returns and dispossesses him again, then the statute of limitations period begins anew.

The statute of limitations applies only to the disseisor's time on the property, not how long the true owner may have been dispossessed of it (by, say, another disseisor who then left the property). However, if adverse possession is continuous between two or more successive disseisors without interruption, it may be possible for the second disseisor to claim adverse possession for the entire period based upon a legal doctrine known as tacking.