How to Legally Steal Land

One of the least known and unconventional means of acquiring or losing land within the United States is through the legal doctrine of adverse possession. Adverse possession undermines all other traditional means of changing ownership of land: no contract exists, no money changes hands and title insurance will not cover the transaction. How is it possible to acquire legal title to another’s land, free of charge?

(Clancco Mobile Unit, Provisional Installation, West Texas, 2007)

Historically, in the United States, traditional common law provided a method for a trespasser to obtain title to another person’s land through its use and occupation. The common law rules for adverse possession have been codified under both federal and state statutes.

This means that if someone enters the real property of another without consent (as a trespasser) and uses the property in such a manner that clearly demonstrates the trespasser’s claim to the property contrary to the rights of the true owner, the land becomes the trespasser’s property if certain other conditions are met. The “other conditions” depend on how the entry occurred, how the property was used and the duration of possession.

For example, a trespasser built a fence on your land with the intention of taking the property, physically cultivated or enhanced it, and you knew about it but did nothing. If this continued for a period of time set by state law, the trespasser may be able to claim this property as her own. The theory is that, by not disputing the trespasser’s use of your property through a lawsuit, you, as the actual owner, have abandoned your rights to the property. There are several elements needed for adverse possession to result in title:

Actual: You actually acted in the manner of an owner of the property.

Open & Notorious: You engage in acts of possession consistent with the property at issue in a manner which was capable of being seen. (This does not mean that you must have been observed in your acts of ownership but, had the actual owner or members of the public been in a position to see you, your acts must have been observeable). You need not use the property in a manner that exceeds that which would be expected of the actual owner – that is, it may be possible to claim adverse possession of a vacation property on the basis of use only during the vacation season, or to claim adverse possession of a vacant parcel of land by engaging in typical acts of maintenance for the parcel.

Exclusive: The adverse possessor does not occupy the land concurrent with the true owner or share possession in common with the public. One does not have to exclude others from the land in order to claim “exclusive” use, but during the statutory period the person claiming title by adverse possession must have been the only person to treat the land in the manner of an owner.

Hostile: Hostility exists where a person possesses the land of another intending to hold to a particular recognizable boundary regardless of the true boundary line. That is, possession is “hostile” to the title owner’s interest in the property. If possession was not hostile, it may still be possible to advance a claim of ownership under a theory of “acquiescence”. You cannot claim “adverse possession” if you are engaged in the permissive use of somebody else’s land.

Under Cover of Claim or Right: Either when the person claiming the property makes the claim based upon constructive possession under color of title (e.g., there is an error in the legal description in their deed leading them to believe they own part of a neighboring property), or makes the claim based upon actual use and possession of the area of land at issue for the statutory period

Continuous & Uninterrupted: All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. It may be possible to claim adverse possession even if there is a transfer of ownership through the principle of “tacking” – for example, in New York, a former owner’s eight years of adverse possession can be “tacked” to the present owner’s two years, for a cumulative ten years of adverse possession.

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