Adverse possession is a legal concept that allows someone who is not the legal owner of a piece of land to gain ownership rights to that land through continuous, open, and exclusive possession of it 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 North Carolina by adverse possession and, more importantly, how to prevent this from happening to your land.
Adverse Possession Law in North Carolina
There are two methods to establish title by adverse possession in North Carolina:
- With Color of Title – N.C. Gen. Stat. § 1-38. (Adverse Possession can be obtained in seven years).
- Without Color of Title – N.C. Gen. Stat. § 1-40. (Adverse Possession can be obtained in twenty years).
“Color of Title” refers to a legal term that describes a situation where a person possesses a property based on a deed or other written instrument, such as a contract, judgment, or survey, that appears to give them valid ownership rights, even though there might be a defect in the title.
Color of title is generally defined in North Carolina “as a written instrument which purports to convey the land described therein but fails to do so because of a want of title in the grantor or some defect in the mode of conveyance.” (See Price v. Tomrich Corp., 275 N. C. 385, 167 S.E.2d 766 (1969)).
“Color of title is that which gives the semblance or appearance of title, but is not title in fact—that which, on its face, professes to pass title, but fails to do so because of a want of title in the person from whom it comes or the employment of an ineffective means of conveyance. The term implies that a valid title has not passed.” See (Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122 (1953)).
“Without color of title” refers to a situation in which a person possesses a property without having a valid or legitimate claim of ownership based on any written document or legal instrument. In other words, they do not have a deed, contract, or other documentation that reasonably supports their right to own or occupy the property.
Adverse Possession with “Color of Title” (N.C. Gen. Stat. § 1-38) In North Carolina
For a person with “color of title” to establish adverse possession, the person must show their possession of the land meets the following requirements.
1. Actual Possession
In North Carolina, “actual possession” in the context of adverse possession refers to the physical occupation and use of another person’s property without their permission.
2. Open Possession of the land
The “open possession” element requires that the adverse possessor’s use and occupation of the property must be conspicuous and apparent to anyone who might reasonably observe the property.
This means that the possession should not be hidden or secretive; rather, it should be evident to the public or the true owner that someone other than the legal owner is using the property.
In other words, the adverse possessor cannot claim ownership through adverse possession if they occupy the property in a way that goes unnoticed or is not easily noticeable.
The possession should be conducted openly, without attempting to conceal the property’s occupation or use.
3. Continuous Possession of the Land
The “continuous” element requires that the adverse possessor’s use and occupation of the property must be uninterrupted and ongoing throughout the entire statutory period, which is several years when claiming under “color of title.”
This means that the adverse possessor must consistently maintain their possession of the property without any extended periods of abandonment or non-use.
If there are any breaks in their possession, it can reset the clock for the required time period.
4. Hostile to The True Owner
The term “hostile” doesn’t mean aggression or conflict. Instead, it refers to the nature of the adverse possessor’s possession of the property.
“Hostile” possession means that the adverse possessor is using and occupying the property without the permission or consent of the legal owner.
5. Possession for Seven Years
The person claiming ownership by adverse possession must occupy the land for seven years when there is color of title. (See N.C. Gen. Stat. § 1-38 and Locklear v. Savage, 159 N.C. 236, 74 S.E. 347).
Tacking, or the ability to combine multiple periods of possession by different adverse possessors, might be allowed in certain situations.
For example, if one adverse possessor with color of title transfers the property to another, and both possessors meet the requirements for adverse possession, North Carolina will allow the possession periods to be combined (tacked) to reach the required seven years.
Establishing Adverse Possession with Prima Facie Evidence: Boundaries, Tax, and Possession
In North Carolina, if a person claiming adverse possession under “color of title” can show the following, they have established “prima facia evidence” of adverse possession.
- Clear Boundary Markings: The person claiming ownership by adverse possession has established clear boundary markers. These markers are required to be discernible up to a height of 18 inches above the ground.
- Registered Survey and Map: The person claiming ownership by adverse possession records a map of property from a surveyor registered under North Carolina law. Accompanying this map is a certificate issued by the surveyor. The certificate attests that the boundaries illustrated in the map correspond precisely to those outlined in the property’s deed or other authoritative title documentation.
- Paid The Property Taxes: In conjunction with the conditions above, the individual is required to list and pay property taxes for the designated property actively.
If a person in North Carolina has “color of title” and has met these three additional requirements, it raises a presumption that he owns the land.
Adverse Possession Without Color of Title (N.C. Gen. Stat. § 1-40.) In North Carolina
For a person without color of title to establish adverse possession, they must show their possession of the land meets the following requirements.
1. Actual Possession
In North Carolina, “actual possession” in the context of adverse possession refers to the physical occupation and use of another person’s property without their permission.
2. Open Possession of the land
The “open possession” element requires that the adverse possessor’s use and occupation of the property must be conspicuous and apparent to anyone who might reasonably observe the property.
This means that the possession should not be hidden or secretive; rather, it should be evident to the public or the true owner that someone other than the legal owner is using the property.
In other words, the adverse possessor cannot claim ownership through adverse possession if they occupy the property in a way that goes unnoticed or is not easily noticeable.
The possession should be conducted openly, without attempting to conceal the property’s occupation or use.
3. Continuous Possession of the Land
The “continuous” element requires that the adverse possessor’s use and occupation of the property must be uninterrupted and ongoing throughout the entire statutory period, which is twenty years when there is no “color of title.”
This means that the adverse possessor must consistently maintain their possession of the property without any extended periods of abandonment or non-use.
If there are any breaks in their possession, it can reset the clock for the required time period.
4. Hostile to the True Owner
The term “hostile” doesn’t mean aggression or conflict. Instead, it refers to the nature of the adverse possessor’s possession of the property.
“Hostile” possession means that the adverse possessor is using and occupying the property without the permission or consent of the legal owner.
5. Possession for Twenty Years
The person claiming ownership by adverse possession must occupy the land for seven years when there is color of title. (See N.C. Gen. Stat. § 1-38).
Tacking, or the ability to combine multiple periods of possession by different adverse possessors, might be allowed in certain situations.
For example, if one adverse possessor with color of title transfers the property to another, and both possessors meet the requirements for adverse possession, North Carolina will allow the possession periods to be combined (tacked) to reach the required twenty years.
Strategies to Safeguard Your Property Against Adverse Possession
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.
Conclusion
I strongly recommend seeking legal advice from an experienced real estate attorney in North Carolina if you have any concerns related to adverse possession. An attorney’s expertise will clarify local laws, the feasibility of your claim, and the potential risks involved.