Adverse Possession (ENCROACH)

YES Go on Has the statute of limitations run? NO Go away

E N C R O A C H

Exclusive: The land must be occupied by an exclusive, identifiable occupant. If a highway goes over someones land and the land owner doesnt protest for years and years, no one has an adverse claim to that land because there had not been exclusive occupancy many different people have occupied the land over the period.

Notorious and Open: The trespassers occupancy must be obvious to the land owner or to others. If the land owner does not know that there is someone else on his land, how can he assert his right to keep the land and eject the trespasser? The land owner does not need to have actual knowledge of the occupancy.

Continuous: The occupancy must be reasonably continuous as what a normal land owner would do. Leaving the land for errands or taking a short vacation does not stop the occupancy, but an extended leave will. Then, when the trespasser returns, the occupancy will have to restart. Courts differ in how long the trespasser may be absent.

Claim of Right: see C below

Open and Notorious: see N above

Actual (Productive): The trespasser must have actual possession over the land (he must be on it or using it). Generally, the trespasser should be using the land in a productive way, like he normally would have done if he was the actual owner of the land. The reasonableness of the use of the land is dependant on the type of land it is.

Claim of Right: Under the Common Law, the trespasser had to have a good faith belief that the land he was occupying was actually his. Most jurisdictions no longer care about the mental state of the trespasser, but bad faith trespassers still seem to lose more often than would otherwise be expected (called the Helmholz Effect).

Hostile: The trespasser must be occupying the land without permission! The trespasser cannot be on the land with permission from the landowner the trespasser must be a wrongdoer. If the landowner has given permission for the occupant to be on the land, he can later ask that occupant to leave.

Statutes: some jurisdictions impose additional obligations that the trespasser must have completed before he may successfully adversely acquire property. For example, even though a trespasser has occupied the property past the statute of limitations and his occupancy has met all of the ENCROACH criteria, the jurisdiction may require the adverse possessor to have been paying property taxes all during that time. Trespassers failure to comply with these statutes will bar any successful adverse possession.