Legal Talk

The advice of a good attorney can be expensive but an attorney's knowledge can be priceless when applied in the correct situation.  Do you have a question about a legal matter and want answers?  Go to www.newspaperattorney.com and submit a question to be answered by an attorney licensed to practice law in the state of Kansas.  Your question may just end up getting answered on this blog!  Remember the Law Office of Brandan Davies LLC does not represent you in any manner until a formal representation agreement has been executed.  The following information is not legal advice and is for entertainment purposes only.  If you need specific legal advice concerning your own legal issue consult with an attorney directly. Ask Away!

Q: What are the conditions for obtaining title by right of adverse possession?

Before I answer this question I am going to put a little context to explain what this legal term of art is.  Adverse possession is a legal process where one person takes title to property that does not belong to them.  It usually comes up between neighbors on a fence line dispute or similar circumstances.  It is basically a common law carry over to encourage the use of one's property.

A:  I can not 100% accurately answer this question because the answer is different depending on which state you live in.  However, I will tell you the general conditions that are the most common for someone to take title through adverse possession.  To take title through adverse possession you must show that you could fully satisfy the conditions of this one sentence.

"You must open and notoriously, make continuous and exclusive, hostile use of property that you actually have physical possession of for the statutorily required term of years"

Now that sounds easy but it isn't.  Let’s look at each element.

Open and Notoriously- You have to use it like the normal user would use it and in such a blatant and obvious way that if the true owner saw how you were using it they would be put on notice that someone else is laying claim to the land.

Continuous- You have to maintain a continuous use/presence on the property.  You cannot give up the land or not use it then come back and assert a claim, without starting all over again.

Exclusive- No other person can be using the land for their purpose. i.e. you can't adversely possess an operating theme park

Hostile- You have to be on the property without permission.

Actual possession-  You have to maintain actual physical possession, you can't adversely possess the land from across the state. (Usually fencing the land in with an adjacent property can satisfy this requirement.

Term of years-  Each state has a specific term of years you must hold the land.  Sometimes the term will be different if you have color of title.