When a dispute arises between neighbors over ownership or control of a disputed area between their respective properties, one concept that frequently arises is "adverse possession." This legal doctrine allows a person to claim ownership of a portion of land under certain conditions, even if they are not the actual owner by virtue of a deed. It may be difficult to believe that you could lose ownership of your property to another person. So, what exactly is adverse possession, and how does it operate in the context of Pennsylvania law?
What is Adverse Possession?
Adverse possession allows someone to acquire legal title to and ownership of land under specific circumstances, effectively “stealing” it from the rightful owner, but legally and through a defined process. To claim adverse possession, the individual must demonstrate that their use of the land meets certain legal criteria over a specified period.
The Legal Criteria for Adverse Possession in Pennsylvania
In Pennsylvania, adverse possession is guided by a set of common law principles. To successfully claim adverse possession, the possessor must prove the following elements:
1. Actual Possession
The claimant must be physically present on the property, demonstrating a clear and intentional use of the land. Actual possession of land is “dominion over the land. This means using the land as a true owner would, which could include making improvements, maintaining the property, or otherwise exerting control.
One court found that maintaining a lawn up to a fence amounted to actual possession of the disputed area.
2. Open, Visible and Notorious Possession
The possession must be obvious to anyone, including the original owner. This means the possessor’s use of the land cannot be secretive; it must be visible and evident. Visible and notorious possession means that ownership must be evidenced by conduct sufficient to place a reasonable person on notice that their land is being held by the claimant as his own.
Placing a shed in someone’s back yard and using it would be sufficient for this type of possession.
3. Exclusive and Continuous Possession
The possessor must use the property exclusively, without sharing control or use with the original owner or the public. To constitute distinct and exclusive possession for purposes of establishing title to real property by adverse possession, the claimant’s possession need not be absolutely exclusive. Rather, it need only be a type of possession which would characterize an owner’s use.
4. Hostile Possession
This does not necessarily mean aggressive or violent action. Instead, it signifies that the possessor does so without permission from the original owner. In legal terms, "hostile" refers to the nature of the occupancy being against or adverse to the interests of the true owner. If all the elements of adverse possession are established, the element of hostility is implied.
For example, if the owner of the land directs the adverse possessor to leave the property, then, to maintain hostility, the adverse possessor must stay.
The 21-Year Rule
One of the most critical aspects of adverse possession is the time requirement. In Pennsylvania, a possessor must maintain their claim for 21 years. During this time, the possessor must satisfy all the aforementioned criteria to establish their claim effectively.
Credit for Prior Owner’s Adverse Possession Tacking Explained
Pennsylvania law allows the claim to “tack on” the time during which prior owners also adversely possessed the property in question. The law holds that in most circumstances “tacking” requires privity of title, meaning, the land acquired by adverse possession must be stated within the granting deed to a new landowner for that new owner to ‘tack’ onto the prior years of adverse possession by the grantor. This allows the 21 year period to be attained through the possession of multiple owners over a number of years, all adding up to 21 years.
The Pennsylvania Supreme Court explained:
[T]he possession of successive occupants may be tacked, but only where there is privity between them. For our purposes, ‘privity’ refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law. But a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor. The deed, in itself, creates no privity as to land outside its calls.
The 10-Year Rule
In some instances, an adverse possession claim may vest in ten years rather than 21 years. This statute is limited in its applicability to only “contiguous lots.” This means a piece of land that is abutting, or adjoining, the adverse possessor’s land. There are more limitations as well, including that the adverse possessor’s adjoining land must be improved by a single-family dwelling that is and has been occupied by the possessor seeking title under this section for the full 10 years and identified as a separate lot.
Legal Actions and Defenses
A claimant cannot simply declare that they are owner of a property. Proving adverse possession is required. To accomplish this, a claimant must notify the title owner and initiate a quiet title action - a civil court action or lawsuit that is filed with the intended purpose to establish or settle the title to a property. This action should be filed with the Court of Common Pleas in the county where the property is located.
The burden of proof is on the claimant. They need to present evidence proving they satisfy all adverse possession requirements – actual, continuous, exclusive, etc. If the title owner wins the case, the quiet title action is dismissed.
Tips to Avoid Adverse Possession Claims on Your Property
Properly identify your property lines. This would include stakes, survey pins, fences, shrubbery or other markers.
Monitor and regularly check for encroachments on your property such as driveways, sheds, gardens, mowed areas, etc.
If any property is part of an easement, know what activities are consistent with the granted easement.
If you suspect someone is trying to take your property by adverse possession (but has not yet initiated a quiet title action), you need to assert your rights to the property by confronting the trespasser and gathering evidence that the requirements of adverse possession have not been met. If the trespasser does not respond, you should consider an action in ejectment against the trespasser.
Adverse possession is a complex area of property law that underscores the importance of continuous oversight and management of one’s land. If you believe you may have a claim or you are concerned about a potential adverse possession situation, it’s crucial to consult with a one of our experienced real estate attorneys who can provide tailored advice and assistance.