Adverse Possession is the primary doctrine used to resolve boundary disputes. Its requirements, or legal elements, are:
- Actual Possession; that is
- Open & Notorious;
- Hostile; and
- Exclusive; held
- Continuously for the Statutory Period.
In essence what this means is that an adverse possessor needs to both sufficiently represent to others AND in actuality possess real property in a mannor that exerts not only a superior claim, but also excludes others without break for a set period of time.
That period of time, the Statutory Period, according to the most common Adverse Possession statute is ten years. However, in limited cases that period may be reduced to only 7 years.
There are also two other basic, but incredibly important, adverse possession concepts which currently exist in its most common form. These concepts are none other than (1) Tacking and (2) Tolling.
Tacking allows one to add the time of the land’s previous owner(s) together with one’s own in order to arrive at the minimum length of the Statutory Period. However, Tacking does require that all the elements of Adverse Possession be in place by various owners Continuously for that full time period.
In stark contrast, Tolling allows minor and incapacitated title holders to extend the duration of the required Statutory Period until the minor has reached the age of majority or incapacity ceases to be an issue. As such, Tolling effectively extends time requirements beyond the Statutory Period.
Finally, it should be noted that in the past judicial interpretation of the most prevalent Adverse Possession statute required the legal element of Good Faith. However, in the 1984 landmark case of Chaplin v. Sanders, the requirement of Good Faith was removed from this most prevalent doctrine of Adverse Possession. The result is that there now is no inquiry as to whether or not the adverse possessor had inteded to “steal” the land.
Though unable to point to hard data in support, anecdotally one realizes in an instant that this court decision has contributed significantly to increased attempts by willful adverse possessors to steal their neighbors land — an injustice which not only myself but many others believe must be stopped!