Missouri Real Estate Lawyer

Adverse possession allows someone to obtain title to land merely by possessing the land under certain conditions.

Adverse possession can occur under any number of circumstances. People have gained title by adverse possession by farming the land, clearing timber, erecting fence lines, keeping livestock on the land, constructing roads, mowing the grass, or making any number of improvements to the land.

Missouri courts consider many factors in deciding adverse possession cases. No hard and fast rule can be applied, and each case must be decided on its own unique facts. Nonetheless, in order to win a case of adverse possession, the claimant must prove each of the following five elements.

Actual Possession

A person claiming adverse possession must show an ability to control the land and his or her intent to exclude others from such control. This requires some continual act of occupying, clearing, cultivating, pasturing, erecting fences or other improvements. One or more of these acts can show actual possession of the land. Additionally, the claimant does not necessarily need to possess all of the land that he or she is seeking by adverse possession. However, the claimant must describe the claimed land sufficiently so that its precise boundary lines can be determined.

Hostile

The claimant’s actual possession of the land must be hostile toward the owner’s rights in the land. This does not mean that the claimant’s conduct must be antagonistic toward the owner. Rather, the actual possession by the claimant must simply demonstrate an intent to possess the land as his or her own. The intent must be unequivocal. However, the claimant does not need to show that the owner knew of the claimant’s possession of the land.

Open and Notorious

The actual possession of the land by the claimant must be open and notorious. This simply means that the possession must be widely recognized and commonly known. So, although the owner does not need to know of the adverse possession, the possession must give the owner reason to know of it. This requirement is met if the owner had knowledge of the possession. However, if the owner did not know of the possession, then the claimant must show that his or her possession was obvious. The owner will then be presumed to have known of the possession.

Exclusivity

The claimant must show that he or she possessed the land for his or her own use. A claimant may not adversely possess land for the use of someone else. However, two or more persons may claim to adversely possess a property if they alone jointly possessed the property. Also, the claimant may tack on the adverse possession of another person. For example, if the claimant acquires an interest from someone who adversely possessed the property, then the claimant could count that time toward his or her own possession. Thus, such prior adverse possession can count toward the ten-year requirement described next.

Continuous

Finally, the claimant must prove that he or she continuously occupied the land for at least ten years. Temporarily leaving the property without an intention of abandoning it will not necessarily cause a gap in the continuous possession by the claimant. However, periodic intervals of possession may cause such gap. What constitutes a gap in possession depends on the circumstances. For example, a flooding of the land that renders it unusable for an extended time may not create a gap in possession.

Adverse Possession Take-Away

Every piece of land is unique. As such, each case of adverse possession must be determined in light of its own particular circumstances. For example, facts supporting a finding of adverse possession in a highly populated area may not support such finding in a sparsely populated area. Property owners who ignore someone else’s use of their land risk losing it by adverse possession.

Michael Sewell, JD, MBA has practice law in Missouri for more than a decade. He has litigated more than 100 cases in federal, state and municipal courts since 2005. Sewell Law provides professional litigation services.

For a confidential initial consultation at no charge, please contact Michael Sewell at (314) 942-3232 or at michael@sewelllaw.net.

This article is for general informational purposes only. It is not intended as legal advice. You should consult an attorney regarding how this information might apply to your specific circumstances.

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

© 2016 Sewell Law, LC