Adverse possession in depth: elements, mistaken boundaries, tacking, color of title, and taxes

Black-letter propositions

1. 01

   Typically the possession must be actual, exclusive, open and notorious, hostile, and continuous for the statutory period, and the period varies: California requires five years, New York ten, and some states use shorter periods with color of title and longer without.

2. 02

   Hostile does not mean unfriendly; it means the possession infringes the true owner's rights, so possession with the owner's permission or license is not hostile, and a tenant cannot adversely possess the rented property.

3. 03

   Courts divide on a possessor who enters under a mistaken belief that the land is hers: the Maine doctrine treats the mistake as defeating the required intent, while the Connecticut doctrine, adopted in Mannillo v. Gorski, treats the mistake as immaterial to hostility.

4. 04

   Under Mannillo, no presumption of knowledge arises from a minor encroachment along a common boundary, and only if the true owner has actual knowledge is the possession open and notorious; equity may compel the true owner to convey the strip for fair value where the possessor acted in good faith and no serious damage would result.

5. 05

   Successive possessors may tack their periods if they are in privity, such as buyer and seller, and Howard v. Kunto allowed tacking even though the deeds described adjacent land and not the land occupied; continuity is a matter of substance, so seasonal use during the time the land can be used suffices.

6. 06

   In California, possession without a written instrument counts only if the land was protected by a substantial enclosure or usually cultivated or improved, and in every case the possessor must have paid all taxes levied on the land for the five years; a possessor under a written conveyance who occupies part of the described property for five years is deemed to hold the part described, except that possession of one lot of a divided tract is not possession of another.

7. 07

   Possession of land owned by the state or a public entity, or dedicated to public use by a public utility, never ripens into title.

Use this attack sequence under time

Common wrong turns

• A tenant's possession, or use with the owner's permission, is not adverse, however long it lasts.
• In a Connecticut-doctrine state, a good-faith mistake about the boundary does not defeat hostility, while in a Maine-doctrine state it does.
• California requires payment of taxes for the period, so a possessor who did not pay them fails even after five years of open use.

Worked example

A homeowner builds a garage that extends fifteen inches onto a neighbor's land, believing the line is farther over. Neither knows of the encroachment for fifteen years. The statutory period is ten years.

Practice this topic

The elements and the mistake problem

Cornell's Wex entry says adverse possession is a doctrine under which a trespasser in physical possession of land owned by another may acquire title if the possession is continuous, hostile, open and notorious, actual and exclusive for the statutory period. It says hostile means the possession infringes the true owner's rights and does not mean unfriendly, that consent or license defeats hostility, and that renters cannot be adverse possessors of the rented property. It reports that California requires five years and New York ten, and that a typical statute may require seven years with color of title and twenty without.

Mannillo v. Gorski concerned steps and a walk that encroached fifteen inches onto a neighbor's land. The New Jersey Supreme Court described the Maine doctrine, under which a mistaken possessor lacks the intent needed for adverse possession, and the Connecticut doctrine, under which the mistake is immaterial. It criticized the Maine doctrine for rewarding the knowing wrongdoer over the honest mistaken entrant and adopted the Connecticut view. It nonetheless held that no presumption of knowledge arises from a minor encroachment along a common boundary, so only where the true owner has actual knowledge can the possession be open and notorious, and it remanded to consider whether the true owner should be compelled to convey the strip for fair value.

Tacking and continuity

Howard v. Kunto involved successive owners who received deeds to one tract but occupied the adjoining tract, which was used as summer cabins. The Washington Court of Appeals held that privity of estate, which a deed traditionally supplies, was satisfied by the transfer of possession even though the deed did not describe the land occupied, so that the possessors could tack their periods. It also held that continuity is a rule of substance and not absolute mathematical continuity, so that a possessor who occupied the land during the time of year it is capable of use satisfied the requirement.

Wex's entry adds that continuity between successive possessors may be maintained if there is privity between them, such as buyer and seller.

California's statutory conditions

California Code of Civil Procedure section 318 bars an action to recover real property unless the plaintiff or predecessor was seized or possessed within five years, and section 321 presumes that occupation by another is subordinate to the legal title unless the property was held adversely for five years. Section 322 provides that if an occupant entered under a claim of title founded on a written instrument or a judgment, and occupied part of the property included in it for five years, the property included is deemed held adversely, except that possession of one lot of a divided tract is not possession of another.

Section 325 says that where the claim is not founded on a written instrument or judgment, land is deemed possessed only where it has been protected by a substantial enclosure or usually cultivated or improved. In no case is adverse possession established unless the land was occupied and claimed for five years and the possessor and predecessors timely paid all taxes levied on the land for those years, shown by certified records of the county tax collector. Civil Code section 1007 adds that no possession ever ripens into title against land dedicated to public use by a public utility or owned by the state or a public entity.

Frequently asked questions