Tent on property

Adverse Possession is one of the most controversial legal doctrines that still exists in modern practice. In essence, it is a mechanism whereby one can go onto someone else’s real property (i.e., land), occupy, possess, and use it for long enough time that the law transfers legal title of the land to that person. Obtaining title by adverse possession sounds, at first blush, like title by theft or robbery, a primitive method of acquiring land without paying for it. To many, it seems like legally sanctioned theft. In theory, up until the statutorily designated time runs up, an individual on your land is a trespasser, but if they break the law long enough and well enough, the law rewards that trespasser with title to parts or even the entirety of your land.

What does an adverse possession against you consist of legally? There are a few components that must be present for somebody to assert legal possession over your land through an adverse claim. The first requirement is that the possession be “actual”. What does this look like in execution? Essentially, “actual possession” means the adverse possessor (or “claimant”) must physically use the land in the same manner that a reasonable owner would, given its character, location, and nature. The courts, when evaluating this, ask, “What would the real owner do with this land?” That might vary depending on the uses to which it may be devoted. Essentially, it depends on how you, the “real owner,” would use it, and whether the adverse possessor is utilizing it in the same way.

Second, the adverse possession must be “exclusive,” meaning the possession cannot be shared with the owner or with the public in general. The adverse possessor must hold the possession of the land for him or herself, as their own, and not for another, making sure they themselves are also excluding third parties from entry to the land (to the extent that a reasonable owner would).

Third, the adverse possessor’s occupation of the land must be open and notorious. The claimant’s possession must be visible and obvious, so that if the real owner made a reasonable inspection of the land, he or she would become aware of the adverse claim. In theory, this means that anyone who actually took reasonable means to inspect the property could have noticed that the claimants were claiming the property as their own. This ensures that the owners are “put on notice,” or made aware, that their title over the property is being challenged. This might manifest as a claimant putting up signs, building or developing on a piece of property, and acts of similar nature. Lastly, the possession of the property on behalf of the claimant must, as the legal doctrine implies, adverse and continuous. The claimant must be continuously occupying your land with hostility and adversity. This means that you can’t be giving them permission to use your land; they have to be openly using it against your wishes or knowledge for the full time required by law to make it theirs.

If you have an adverse possession claim against you, you are naturally going to feel indignant and that your property has been unjustly taken from you. While our attorneys at King Law can help you through this process, the easiest way to prevent adverse possession claims against you is to ensure the above-mentioned elements are not present. You can do this by regularly checking and using your land. It might be farmland, hunting land, a vacation property, or even an estate a relative has left you in their will. One of the best ways to ensure any of these items of real property remain in your lawful property is to utilize that land consistently and frequently, while also looking for obvious signs of trespass. Another way you can ensure land remains lawfully yours when somebody else is using it is by simply giving the other individual on your land permission to use your land. By allowing an individual permission to access or temporarily utilize your land, you can eliminate the “adverse” aspect of an adverse possession claim.

King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively, and compassionately on behalf of our clients each day. If you have a current conflict with your title involving an adverse possession claim, contact King Law at 888-748-KING (5464) for a consultation. We have offices located across western North Carolina and upstate South Carolina. We are here to serve you and to guide you as we navigate this journey together.

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