In my property class, adverse possession was one of the first doctrines we learned about. Our property professor became frustrated in the following weeks when we suggested clearing all title issues by waiting twenty years for the adverse possessor to become the rightful owner. Around that same time I was on a plane with a real estate attorney who told me that in thirty years of practice he had never seen a case of adverse possession. Until recently, this was a legal doctrine known to 1L law students, but not really relevant to practice or known by the general population (like the Rule in Shelley's Case).
This changed last month when a Texas man decided to use this doctrine to his benefit and adversely possess a bank-owned house that was sitting empty. This story was picked up by various bloggers and left many readers wondering if they too could profit from this law.
So how does adverse possession work? This doctrine essentially says that if you sit on a piece of land long enough (traditionally twenty years, but it differs state to state) you become the actual, legal owner of the land. There are traditionally four elements making up adverse possession and states may have their own statutory requirements. The four common-law elements are actual entry, open and notorious occupation, hostility, and continuity. This means that:
1. You must actually enter the property.
2. You must make your presence obvious. (You can't enter secretly or hide in a shed for twenty years unfindable and then claim the land is yours.)
3. You must be there without the permission of the owner. Your presence must be hostile to the owner's title.
4. You must occupy the land steadily for twenty years (or whatever the statutory period is in your jurisdiction). This does not mean that you can never leave the land, but rather that you use the land as continuously as any normal owner would. If the actual owner boots you off the land, the clock stops running and you would have to re-enter and start over.
States have there own additional requirements in addition to these. In Alabama these requirements are outlined in section 6-5-200 of the Alabama Code. In Alabama the time for adverse possession is ten years, and in addition to the common law requirements, the adverse possessor must have done one of three things:
1. Recorded a deed to the property ten years ago
2. Paid property taxes for ten years or
3. Inherited the property from an adverse possessor who was in position one or two.
Looking at Alabama's statute (and many other states have similar requirements). You can see the risk of being an adverse possessor. An adverse possessor can hold a property for nine years, eleven months, paying property taxes the entire time, be ejected by the actual owner on the last day, and find himself possessing nothing.
