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 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 Pennsylvania by adverse possession and, more importantly, how to prevent this from happening to your land.
The Elements of Adverse Possession in Pennsylvania
A party who seeks to establish title to real property by adverse possession in Pennsylvania must prove (1) actual, (2) exclusive, (3) visible, (4) notorious, (5) distinct, (6) hostile, and (7) continuous for a period of either ten or twenty-one years. (10 years for single-family homes on less than ½ acre and 21 years in all other instances)(See 42 Pa. Cons. Stat. § 5527.1, and 42 Pa. Cons. Stat. § 5530).
Not proving even one of these elements will defeat an adverse possession claim.
Here is what the courts in Pennsylvania have said about each one of the elements necessary to establish adverse possession:
1. Actual
In Pennsylvania, “actual possession” in the context of adverse possession refers to a person physically occupying and using a property as if they were the true owner of the land.
The courts have said that “actual possession of land means dominion over the property.” (See Moore v. Duran, 455 Pa.Super. 124, 687 A.2d 822 (1996)).
In general, actual possession will require a person to treat the property as their own, make improvements, and use it as a typical owner would.
2. Distinct and Exclusive
The “Distinct and exclusive” possession requirement means that the adverse possessor must have sole control and use of the property, “excluding others,” including the true owner. (See Glenn v. Shuey, 595 A.2d 606 (Pa. Super. Ct. 1991).
In other words, the adverse possessor should demonstrate that they are the primary and dominant user of the property during the period required for adverse possession to be established.
Pennsylvania courts also said that to show exclusive possession, the claimant’s possession does not need to be absolutely exclusive. Instead, the possession only needs to be the same type of possession that would characterize an owner’s use. (See Reed v. Wolyniec, 323 Pa.Super. 550, 471 A.2d 80 (1983)).
3. Visible and Notorious
“Visible and notorious“possession of land means that the claim of ownership must be evidenced by conduct sufficient to place a reasonable person on notice that the claimant is holding their land as his own. Sterner v. Freed, 391 Pa.Super. 254, 570 A.2d 1079 (1990).
“Visible” means that the possession should be readily observable and evident to anyone with an ownership interest in the land. It should not be conducted in secret or behind closed doors.
The open element requires that the possessor’s actions are visible and conducted in a way that doesn’t try to obscure or conceal the assertion of ownership over the property.
“Notorious” refers to the requirement that the adverse possessor’s occupation and use of the property are conducted in a manner that is well-known, widely recognized, or commonly understood within the local community or among those with an ownership interest in the property.
4. Hostile
“Hostile” doesn’t mean “ill will” or “hostility,” but it implies an assertion of ownership rights adverse to that of the true owner and all others. Schlagel v. Lombardi, 337 Pa.Super. 83 (1984).
A possession is considered “hostile” when the adverse possessor occupies the property without the true owner’s permission or legal right to do so.
Hostile possession occurs when the adverse possessor occupies the property to assert ownership rights that are adverse to the true owner’s rights.
5. Continuous For a Period of Either Twenty-One or Ten Years
The possession of the land must be continuous and uninterrupted for ten or twenty-one years.
A person can obtain adverse possession of a single-family home located on less than one-half acre of land when there is continuous and uninterrupted possession of the land for ten years.
It takes twenty-one years of continuous and uninterrupted use and occupation for all other lands to obtain title by adverse possession.
Constant use by the person claiming adverse possession is not required as long as the possession is of the type the usual owner would make of the property. (See Pistner Bros., Inc. v. Agheli, 359 Pa.Super. 177, 518 A.2d 838 (1986)).
Temporary absence from the land without an intention to abandon possession will not break the continuity of possession.
There also does not need to be ten or twenty-one 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 or twenty-one-year period with the result that the final adverse possessor gets title to the land.
Who Has The Burden To Prove Adverse Possession in Pennsylvania?
In Pennsylvania, the burden of proof for adverse possession falls on the party claiming adverse possession.
This means that the person seeking to acquire ownership of a property through adverse possession must provide evidence and prove all the elements of adverse possession to make their claim successfully.
The burden of proof refers to the responsibility of showing that the facts of the case meet the legal requirements for adverse possession.
In addition, in Pennsylvania, the burden of proof for adverse possession cases is “clear and convincing evidence.” This standard is higher than the preponderance of the evidence standard used in most civil cases.
“Clear and convincing evidence” means that the evidence presented by the adverse possessor must be highly and substantially more likely to be true than not.
It requires a higher degree of certainty than the preponderance of the evidence standard.
“Adverse possession is an extraordinary doctrine that permits one to achieve ownership of another’s property by operation of law. Accordingly, the grant of this extraordinary privilege should be based upon clear evidence.” Edmondson v. Dolinich, 307 Pa.Super. 335, 453 A.2d 611, 614 (1982)
“It is a serious matter indeed to take away another’s property. That is why the law imposes such strict requirements of proof on one who claims title by adverse possession.”
Does a Person Have to Pay Taxes to Acquire Adverse Possession?
Pennsylvania 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 That Cannot Be Adversely Possessed in Pennsylvania
A person cannot gain title to any federal and state-owned land by adverse possession in Pennsylvania.
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 Pennsylvania 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.