Adverse possession allows a person to obtain title and thus ownership of a property through possessing that property for a certain period. The requirements for adverse possession have been outlined in statute and when those requirements, or elements as they as also commonly known, then title to a property passes to the adverse possessor as though it has been conveyed to them through traditional methods of deed transfer. The elements that must be met to have a claim for adverse possession are actual, hostile, exclusive, continuous, open and notorious, and the statute of limitations. Generally, the requirements, or elements, of adverse possession differ from state to state, but some commonalities persist regardless of which state a person might currently be living in.
The “actual” element of adverse possession typically requires that there be actual possession of real property. In other words, there must be real and physical use of the property being adversely possessed. For the “exclusive” element of adverse possession to be satisfied, there can be no other individual other than the adverse possessor possessing or using the property, especially the true owner, without permission of the adverse possessor.
To meet the “hostile” element of adverse possession, possession of the property must be without the permission of the true owner. Hostility, in terms of adverse possession, is placed into one of three categories: objective, subjective – good faith, and subjective – larcenous intent. The objective category for hostility considers the state of mind of the adverse possessor irrelevant and requires that the adverse possessor treat the property as if they were the owner. Both subjective–good faith and subjective–larcenous intent, on the other hand, take into account the adverse possessor’s state of mind. Subjective–good faith requires that the adverse possessor mistakenly believe they had land that they owned, while subjective–larcenous intent allows an adverse possessor to knowingly encroach on land that is not theirs. Most jurisdictions, including North Carolina, follow the objective standard for hostility. On a separate note, there is generally a presumption of permissive use of property, especially if the adverse possessor and the true owner are relatives. A tenant, due to the nature of a lease, is considered to have the property with the permission of the landlord. For a tenant to become an adverse possessor of the landlord’s property, the lease must expire, and the tenant must continue to live and possess the property after the lease’s expiration.
The “open and notorious” element of adverse possession is only satisfied when the possession is evidenced in a way that would be visibly noticeable to the reasonably attentive property owner. This element has the effect of putting the true owner of the adversely possessed property on constructive notice. However, when an encroachment on another’s property is small, not clear, and not apparent to the naked, only the true owner’s actual knowledge of the encroachment will satisfy the open and notorious requirement of adverse possession. In other words, the adverse possessor must be able to locate the adversely possessed property and ascertain who is regularly possessing it, so that they can bring suit if desired.
To meet the “continuous” element of adverse possession the possession of the adversely possessed property must be uninterrupted for the entirety of the statutory period. The term “statutory period” refers to the amount of time that an adverse possessor must possess a property before the title is transferred to them as established by State law. Generally speaking, an adverse possessor’s claim will not be defeated if the physical use of the property is seasonally restricted, particularly when the seasonally restricted use is consistent with the nature and condition of the land.
In North Carolina, the statutory period for adverse possession is twenty years. This means that the adverse possessor must meet all of the elements described above for a total of twenty years. It also means that the true owner only has twenty years to bring an action against the adverse possessor to protect their title. However, this statutory period can change under limited circumstances, such as the true owner having a disability or the adverse possessor having a color of title. In any of these circumstances, if there has been a string of adverse possessors, then a current adverse possessor may tack their period of possession to that of the previous adverse possessor, though each successive adverse possessor must be in privity for tacking to be an option. Traditionally, privity refers to the standard grantor and grantee, devisor and devisee, and ancestor and heir relationships. Simply put, tacking helps adverse possessors satisfy the statutory period they are required to meet.
Arguing and proving a claim for adverse possession is a difficult and complicated process. If you believe you have a claim for adverse possession or if you would like to bring an action against an adverse possessor, you must contact an attorney who can give you legal advice and guidance to protect your interests. If you need representation or have questions about a potential case, don’t hesitate to contact King Law Offices at (888)-748-KING. We are dedicated to providing the highest level of legal representation and advocacy for our clients.