The doctrine of “adverse possession” refers to the ability acquire legal ownership of land belonging to someone else by simply using that land for at least 10 years.
A person who seeks to acquire legal ownership by adverse possession must demonstrate all of the following.
Use of land belonging to another.
The most common use that will lead to a claim of adverse possession is actually living on the property.
Other uses include farming the land, cutting timber from the land, or making such other uses of the land as a landowner would normally do.
There must be a claim of ownership.
The initial element to be proved by clear and convincing evidence is a claim of ownership. A person cannot set out to adversely possess the property of another. The “claim of ownership” must exist at the beginning of the ten-year statutory period.
The use must be adverse to the interests of the true owner.
Before a person can acquire legal title to land by adverse possession, his use of the property must be adverse or hostile to the interests of the true owner.
If the landowner has permitted the person to use the land, then the use is not “adverse”.
(Read more about the effect of permissive use here.)
Adverse or hostile use can take many forms. In summary, the use of the property must be that which a true owner would make, disregarding the claims of others, asking permission from no one, and using the property under a claim of right.
Note: If you are one of several owners of the land, in most cases, you cannot adversely possess the land against your cotenants (although it is possible if you use of the land rises to the level of “ouster”. The term ouster means the wrongful dispossession or exclusion by one tenant in common of his cotenants from the common property of which they are entitled to possession.
Open, notorious and visible.
In addition to being adverse, the use of the land must be open, notorious and visible. Adverse possession cannot occur if someone is secretly using the land.
So, for example, a person could not acquire ownership of a 200 acre tract of woods by going deep into the middle of it and building a small cabin.
Continuous and uninterrupted.
The use must also be continuous and uninterrupted for a period of 10 years. This does not mean, of course, that a person living on the land must never leave it.
But, the use must be unbroken by any significant period of time.
To acquire legal ownership of land by adverse possession, the party making use of it must do so to the exclusion of others. Joint use of property is insufficient to establish a claim of adverse possession.
Finally, the use of the land must be peaceful. Obviously, a person could not forcibly take over someone’s land and then acquire it by adverse possession.
The fence or driveway exception.
Pursuant to Section 15-1-13 of the Mississippi Code, there is an exception for fences or driveways built on somebody else’s property.
So, if a neighbor locates the fence or driveway on your property, you can avoid an adverse possession claim by filing a written notice with Chancery Clerk that the fence or driveway was built without your permission.
Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.