Adverse possession is a legal concept that allows someone who is not the legal owner of a piece of land to eventually gain ownership rights to that land through continuous, open, and exclusive possession of the land for a specific period of time.
For actual landowners, the idea that someone else could eventually gain ownership of their land simply by occupying it can be unsettling and even unfair.
This article will discuss the element necessary to gain title to someone else’s land in Missouri by adverse possession and, more importantly, how to prevent this from happening to your land.
The Elements of Adverse Possession in Missouri
A party who seeks to establish title to real property by adverse possession in Missouri must prove that he possessed the land and that his possession was: (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a period of ten years.” Empire Dist. Elec. Co. v. Coverdell, 588 S.W.3d 225, 234 (Mo. App. S.D. 2019). The statutory reference can be found here Rev. Stat. § 516.010.
Not proving even one of these elements will defeat an adverse possession claim.
Here is what the courts in Missouri have said about each one of the elements necessary to establish adverse possession:
1. Hostile and Under a Claim of Right
The possessor’s occupation of the property must be hostile, i.e., “adverse.” “Hostile,” for adverse possession, “means a possession antagonistic to the claims of all others, with an intent to occupy as one’s own.” Underwood, 67 S.W.3d at 775.
This means the possessor does not have the actual owner’s permission to be on the land. “Hostile” does not mean anger or hatred. The state of mind of the adverse possessor is irrelevant.
If the possessor initially enters the land with the permission of the actual owner, the possession does not become adverse until the possessor makes clear to the actual owner that she is claiming “hostilely.”
This can be done by explicit notification, refusing to permit the actual owner to come onto the land, or other acts inconsistent with the original permission.
2. Actual Possession of The Land
“Actual possession” means the person had actual possession of the land, the ability to control the land, and the intent to exclude others from such control.” Dumproff, 376 S.W.3d at 688.
The requirement of actual possession is designed to give the actual owner notice that a trespass is occurring. It is also intended to provide the owner with notice of the extent of the adverse possessor’s claim.
As a general rule, the adverse possessor will gain title only to the land that he actually occupies.
3. Open and Notorious
The “open and notorious” element of adverse possession is met when the person claiming adverse possession exercises “visible acts of ownership on the disputed property.'” Tiemann v. Nunn, 495 S.W.3d 804, 810-11 (Mo. App. E.D. 2016)
Possession is “open and notorious” when it is the use the usual owner would make of the land. The adverse possessor’s occupation of the land must be sufficiently apparent to put the actual owner on notice that a trespass is occurring.
Example: A Cable Company runs a cable under Landowner’s land, and there is no indication of the cable’s existence from the land’s surface. The Cable Company cannot gain title by adverse possession because there is nothing to put the Landowner on notice of the trespass.
4. Exclusive Possession
“Exclusive possession” means the person claiming adverse possession “must hold the land for himself or herself only, and not for another.'” Lancaster v. Neff, 75 S.W.3d 767, 774 (Mo. App. W.D. 2002)
“Joint possession with the owner is not sufficient to support title by adverse possession.” Lohrmann v. Carter, 657 S.W.2d 372, 377 (Mo. App. S.D. 1983).
“Exclusive” means that the possessor is not sharing the land with the actual owner or the public. This requirement does not prevent two or more people from working together to obtain title by adverse possession. If they do so, they will get the title as tenants in common.
Example: Ann and Bob are next-door neighbors. They decide to plant a Christmas tree farm on 20 vacant acres behind both of their homes. Ann and Bob share expenses and profits from the Christmas tree farm. If all other elements for adverse possession are present, at the end of the 10-year period, Ann and Bobb will own the lot as tenants in common.
5. Continuous for a Period of Ten Years
The adverse claimant’s possession must be continuous throughout the ten-year period. Continuous possession requires only the degree of occupancy and use the average owner would make of the property.
Missouri courts have held that intermittent occupancy periods generally are insufficient to establish “continuous” possession. Feinstein v. McGuire.
However, constant use by the claimant is not required as long as the possession is of the type the usual owner would make of the property.
Temporary absence from the land without an intention to abandon possession will not break the continuity of possession. Feinstein v. McGuire.
There also does not need to be ten years of continuous possession by the same person. Ordinarily, an adverse possessor can take advantage of the periods of adverse possession by his predecessor.
Separate periods of adverse possession may be “tacked” together to make up the entire ten-year period with the result that the final adverse possessor gets title to the land.
Does a Person Have to Pay Taxes to Acquire Adverse Possession in Missouri?
Missouri does not require the adverse possessor to pay taxes on the property. However, payment of property taxes is good evidence of adverse possession.
Government Land Cannot Be Adversely Possessed in Missouri
A person cannot gain title to any government-owned land by adverse possession in Missouri.
Here are a couple of great examples from Missouri law:
- As a general rule, a municipality’s rights in real estate cannot be extinguished by adverse possession. City of St. Louis v. Missouri Pac. Ry. Co., 114 Mo. 13, 21 S.W. 202, 206 (1893).
- A private right to a public street cannot be acquired by adverse possession even though the street has not been graded, paved, or otherwise improved by the municipality. Brown v. City of Carthage, 128 Mo. 10, 30 S.W. 312, 313 (1895).
- A 17-year encroachment on a portion of an area dedicated as a street confers no right on squatter as against the municipality’s right to use the strip for the purpose dedicated. City of Pacific v. Ryan, 325 Mo. 373, 28 S.W.2d 652 (1930).
- Over 40 years’ possession of a portion of strip platted and dedicated as a public alley is ineffective in divesting the municipality of title. City of South Greenfield v. Cagle, 591 S.W.2d 156, 159 (Mo. App.1979).
Strategies to Safeguard Your Property Against Adverse Possession in Missouri
Avoiding adverse possession of your property involves taking proactive measures to protect your ownership rights and prevent others from acquiring legal ownership through continuous and open use.
Here are some strategies to consider:
- Regular Property Inspections: Regularly inspect your property to ensure no one uses it without your permission. This will help you identify any potential adverse possession claims early on.
- Clear Boundaries: Mark the boundaries of your property with fences, walls, or other visible markers. This can help prevent encroachments and clarify where your property lines lie.
- Communication: If you become aware of someone using your property, communicate with them in writing to assert your ownership rights and ask them to stop. This establishes a record of your efforts to prevent adverse possession.
- Property Tax Payments: Continuously pay property taxes on time. Failure to pay property taxes can weaken your claim to the property and make it easier for someone else to claim adverse possession.
- No Permission: Do not grant permission for others to use your property in a way that might be construed as allowing them to gain ownership. Any permissive use can weaken your defense against an adverse possession claim.
- Document Everything: Keep records of property surveys, deeds, property tax payments, and any communication with individuals using your property without permission. These records can be crucial evidence if a dispute arises.
- Lease Agreements: If you allow someone to use your property temporarily, create a written lease agreement that explicitly states their lack of ownership rights and specifies the duration of use.
- Regular Use: Continue using your property regularly. Regular, consistent use helps demonstrate your active ownership and can undermine any adverse possession claims.
- Legal Action: If you become aware of a potential adverse possession claim, consult a real estate attorney to discuss your options. Taking legal action early on can help protect your ownership rights.
- Post Warning Signs: If applicable, post signs indicating your property ownership. While not foolproof, this can discourage individuals from attempting adverse possession.
- Negotiation: If you discover someone is using your property without permission, consider negotiating an agreement that reaffirms your ownership while allowing them to use the property under certain conditions.
- Land Use Agreements: If you know someone using your property, you can create a land use agreement outlining their use while reaffirming your ownership. This agreement can help prevent adverse possession claims.
I strongly recommend seeking legal advice from an experienced real estate attorney in Missouri if you have any concerns related to adverse possession. An attorney’s expertise will provide clarity on local laws, the feasibility of your claim, and the potential risks involved.