Requirements of Adverse Possession

Under Minnesota law, a person seeking to prove up a claim of Adverse Possession of another’s property must show he or she had actual, open, hostile, continuous, and exclusive possession of the land in question for at least 15 years. Each of the aforementioned requirements, or elements, must be met in order to succeed on a claim for Adverse Possession. If any of the requirements set forth above is not met, then there can be no claim to Adverse Possession. As such, it is very important to understand each of the elements of Adverse Possession whenever you are trying to determine whether or not a piece of land has been adversely possessed by another. Below is a discussion of each of the elements of Adverse Possession, as well as further examples of each element.

Requirement #1
Actual Possession:

Simply put, the phrase actual possession, means that the person claiming ownership over land by way of Adverse Possession must have in fact actually possessed the property in question. For example, if a person merely says that he possesses a piece of property, but he does not in fact do anything to or on the property that he claims to own, then his possession of the land cannot be said to be actual, and he cannot succeed in getting ownership of the land by way of Adverse Possession. After all, it would seem a bit of a problem if all anyone had to do to gain title to property through Adverse Possession was to say that they owned a particular piece of land, despite the fact that they have never set foot on it, built on it, or otherwise maintained or used the property.

One of the most obvious examples of actual possession in an Adverse Possession situation is “squatting.” Squatting occurs when someone utilizes or moves onto another’s land or moves into another’s home, most often when the property in question is unoccupied by its true owner. A squatter may build a house on another’s land in a remote location, therein actually possessing the land on which their house is built. Another traditional example of a squatter would be a person who moves into an unoccupied or “abandoned” home. For the period of time that the squatter remains on the property, they can arguably be said to be in actual possession.

While squatting is something that has largely been relegated to the past, there are plenty of common situations in which someone may have actual possession over another person’s land. For example, a neighbor that mows a strip of grass that is located on neighboring land could be said to actually possess the strip of land she regularly mows. Similarly, dumping grass clippings in a certain location, clearing brush from a certain section, or planting and maintaining a garden are possible examples of common activities that may satisfy the element of actual possession in a claim of Adverse Possession.

The purpose behind the actual possession requirement of Adverse Possession is to ensure that the person seeking to take property from another, true owner, has in fact been using the property in question. If the person claiming Adverse Possession has not been actually using the property, then how can they claim that they should own the property over the true owner? One can only imagine the number of claims for Adverse Possession of property that would arise if actual possession of the property were not required. The results would be absurd. Hence the requirement of actual possession in any claim of Adverse Possession.

Requirement #2
Open Possession
Open possession means that the person possessing the land does so out in the open, and not in secret. Therefore, is someone is claiming Adverse Possession over another person’s land, but only does so in secret, then he or she cannot be said to be openly possessing the land in question, and cannot gain title to the land by way of Adverse Possession. After all, how would anyone, let alone the true owner, know if someone was laying claiming to their land through Adverse Possession if it could be done secretly.

So how do you know if a person is openly possessing land? Unfortunately, there is no exact definition as to what constitutes open possession. One thing is certainly clear, the more visible the adverse possessor’s use is, the more open the possession is. One general way that you can think about whether or not something satisfies the openess requirement is to ask yourself whether or not the possession is visible. After all, if the true owner of the property should have been able to tell that his or her land was being adversely possessed because they could actually see the possession, then the possession is most likely open. If, on the other hand, the true owner of the proeprty would never have been able to see the possession (or indications of it), then it is more likely that the possession was not open.

For example, let us say that your family owns 100 acres of densely wooded property in northern Minnesota. With the exception of a small hunting cabin that your great uncle built at the southeastern corner of the property, your family has always worked to leave the remainder of the land untouched in an effort to preserve and enjoy the pristine wilderness and therein generate prime hunting. Unbeknownst to you and the rest of your family, Billy, who lives on the other side of the state during the winter months, likes to come up to your family’s property as soon as the snow melts and live off the land, all without your family’s knowledge.

Billy knows that your family owns the land that he likes to live on from spring through the fall, and he is also aware that your family uses the land to hunt, and that you and your family members are often wandering about the 100 acre parcel, especially during the hunting seasons. Not wanting to be found out, Billy lives in a tent while he is on your family’s property, and moves his campsite each day in an effort to keep from being found. After 30 some years of living on your family’s hunting land for 7 months out of each year, Billy makes a claim to the property arguing that he has adversely possessed it from your family by living there for the last 30 years. However, because Billy moved around so often and took other active measures to avoid detection by you and your family, you and your family cannot be said to have been put on notice that Billy was in active possession of your land. Billy’s possession was not open, and therefore Billy cannot claim ownership of the land by Adverse Possession. The situation would be very different if Billy built a cabin in a certain location, or if he has cleared a certain section of land and always sets up his camp there, as these activities may well satisfy the requirement of open possession.

The purpose of the open possession requirement is to provide the true owner of a piece of property with notice of another’s possession of that property. This requirement gives the true owner an opportunity to reclaim possession by forbidding the adverse possessor from using the land and/or having the would be adverse possessor physically removed from the property. The idea is to ensure that true owner has a clear opportunity to discover the Adverse Possession, and to put a stop to it. Without this opportunity, it would be unfair to take land away from a true owner.

Requirement # 3
Hostile Possession
Hostile possession does not mean anger or physical violence between the person claiming Adverse Possession over a piece of property and the true owner of said property. Rather, hostile possession means that the person using the land of another must be doing so without permission and against the interests of the true owner in order to claim Adverse Possession over said land. The main point of this requirement of hostility in any claim for Adverse Possession is to ensure that property owners do not unwittingly lose their land to a neighbor (or someone else) when they allow that neighbor to use their land. After all, you cannot have Adverse Possession if everyone is in agreement about how the land in question is to be used.

For example, if you were to get permission to use your neighbor Matt’s land to store your propane tank on, you cannot later make a claim that you have acquired the land in question by way of Adverse Possession, because your possession of the land was permissive and not hostile. On the other hand, if you put your propane tank on Matt’s property without Matt’s permission, or even after having been denied permission to do so, you would meet the requirement that your possession of Matt’s property be hostile.

Often, the key in determining whether or not the requirement of hostile possession has been met is to determine whether or not permission for the use of the land has been granted by the true owner of the land in question. Permission in this context may be oral, written, or, in some cases, silent (i.e. permission may be inferred, depending on the circumstances, from the true owner’s failure to object). Adverse Possession by its very name indicates that the land is possessed by another person adverse to the true owner’s interests. If the possession is allowed by the true owner, it cannot be deemed adverse to his interests. Therefore, it is often helpful to think of hostility in this context as activity/behavior adverse to the interests of the true owner (i.e. his control, ownership, etc. of the property).

Hostile possession is presumed to be present when the other requirements of Adverse Possession (actual, open, continuous, and exclusive possession) have been met. Therefore, meeting the other requirements of Adverse Possession will create a presumption that the possession is hostile. It is important to note, however, that this does not mean that whenever you are able to establish the other four requirements of Adverse Possession, that the requirement of hostility will automatically be satisfied, it is only presumed to be hostile. This presumption can be rebutted by the true owner. The true owner can argue and present evidence which demonstrates that the possession was not hostile, in most cases by demonstrating that the possession was in fact permissive.

Requirement #4
Continuous Possession
Continuous possession means exactly what it says: in order to get Adverse Possession, the non-owner must possess the land in question continuously for 15 years. Interestingly, continuous, in this sense, does not necessarily mean constant. Rather, the land must be used regularly by the non-owner without any significant gaps in time.

Consider the following example:
January, 1990 – You build a shed on your neighbor’s land.
January, 1995 – You decide to remove the shed from your neighbor’s land, and put it on your land.
January, 1996 – You move the shed back to its original location on your neighbor’s land, where the shed remains for the next 10 years (2006).

In this example, you have not maintained continuous possession because of the gap in time between 1995 and 1996 when the shed had been removed back to your property. However, when you returned the shed to your neighbor’s property in 1996, you essentially restarted the clock on a new claim of Adverse Possession. Therefore, assuming that you keep and maintain the shed in the same location until at least 2011, you will have completed 15 years of continuous possession, and therein satisfy this requirement of Adverse Possession.

One interesting caveat to this requirement is that the continuous possession and 15 year requirements apply to the time of Adverse Possession of the land, and has no relation to the time that the true owner of the land has owned the property, nor to the time that the person adverse possessor has possessed the land individually. The 15 years of an Adverse Possession claim may span over multiple owners and multiple adverse possessors. This principle is called tacking.

Take the following example: You purchase a property from Tom in the year 2000. Unbeknownst to you, since 1995, a portion of the property that you just purchased from Tom has been adversely possessed by your new neighbor, Cindy. Finally, in 2011, you discover that Cindy has been adversely possessing a portion of your property, so you ask her to get off of your land.

In this situation, Cindy can likely claim Adverse Possession, because she adversely possessed the land continuously since 1995. The fact that the land in question was sold by Tom to you in 2000 does not restart the clock on Cindy’s Adverse Possession.

As another example, one neighbor, Nancy, constructs a beautiful garden, that just so happens to be located almost entirely on Nancy’s neighbor Pat’s property. Nancy completes the garden in 1995, and continuously and meticulously maintains it year in and year out. In 2001, however, Nancy decides she can no longer handle the Minnesota winters and heads south, selling her property to Dennis. Like Nancy, Dennis takes care to maintain the garden just as Nancy had. Dennis eventually decides that while he loves the garden and the house, he would like to down-size to a condominium. Thus, in 2010, you buy the property from Dennis, in part, because of the gorgeous garden, and after your purchase, you undertake to grow and maintain the garden just as Dennis had before you, and as Nancy had before him.

In 2012, Pat finds out that the garden is and always has been located entirely on his property. Pat loves the garden, but it is big, and after learning that it is located entirely on his property, Pat begins to worry about a claim for Adverse Possession being made. So, Pat tells you to get off of his property and to remove the garden. Unfortunately for Pat, you can still claim Adverse Possession, because the land in question was actually being continuously adversely possessed since 1995. Thus, you get to count your two years of ownership, as well as Dennis’s nine years of ownership and Nancy’s six years, for a total of 17 years of Adverse Possession. You get to “tack on” your Adverse Possession to Dennis’s and Nancy’s.

As you can see, tacking is very important because a new purchaser of property may not realize when an Adverse Possession began, if it is something that needs to be addressed immediately after purchase, or if the purchaser is buying land already subject to the claim, which reduces the size and value of the property and will affect the purchase itself. These are all important reasons to seek qualified legal representation prior to the purchase of real estate.

The purpose of the continuous possession and 15 year requirements, like others, is to protect property owners from losing land in an unfair manner. By requiring the non-owner (the person adversely possessing) to have possession of the land without interruption for a full 15 years, the true owner is given more than ample time to discover and reclaim possession of the land in question.

Requirement #5
Exclusive Possession
One of the basic rights that a property owner has with respect to their property is the right to keep others off of their property. In the law, this is called the right to exclude. In the context of Adverse Possession, the non-owner must possess the true owner’s land exclusively, meaning he must intend to exclude from the property (that is, to keep off/keep away) all those that an ordinary owner of land would exclude. In fact, it is particularly important that a person attempting Adverse Possession actively exclude the true owner of the land himself. After all, if the true owner is allowed to access the land in question and use the same for his or her own benefit, the non-owner does not have exclusive possession, and cannot succeed in a claim of Adverse Possession.

Here are some examples discussing exclusivity:

Example 1: You build a swing set for your kids on your neighbor Brad’s property. While you and your kids do use the swing set, you do not keep Brad and his kids from using the swing set as well. In such a situation, you do not have exclusive possession, and therefore you cannot succeed on a claim of Adverse Possession to the land on which the swing set sits. Even if Brad knows that the swing set itself is yours, your failure to exclude others (but in particular the true owner) from accessing and using the land likely means that you do not have exclusive possession.

Example 2: You own some farmland and have also been using (adverse to his interest) some of your neighbor Sam’s farmland, intending to eventually claim Adverse Possession over the land in question and own it outright. All the while that you are waiting for your claim of Adverse Possession to mature, other people also use the same land (without your permission or Sam’s) for camping, hunting, and other activities. While you know that these activities are going on, you decide that since the land is not legally yours yet, it is not your problem to worry about. Ultimately, when you make a claim of Adverse Possession over the land, Sam may well defend against your claims by arguing that your possession was not exclusive, because you did not intend to exclude all others from the land as a true owner would do.

Exclusive possession does not necessarily mean that the adverse possessor has to keep everyone off the property at all times. Rather, establishing exclusive possession means that the adverse possessor behaves as the true owner would (i.e. excluding as a true owner would), claiming that his interest in the property is superior to the interests of all others. The exclusivity requirement ensures that would-be-owners (i.e. those claiming ownership through adverse possession) have behaved as true owners of the land in question. After all, Adverse Possession itself is founded in the idea that those who behave as true owners may be entitled to become true owners, that is, at least over absentee owners. Meanwhile, those who do not act like true owners are no better than absentee owners, and therefore should not be entitled to take the land of another.

Contact Gabriel Law Office

Information Required