Chapter 3

ADVERSE POSSESSION

I. INTRODUCTION

A. Ejectment actions:  Just as there are Statutes of Limitation that bar the bringing of criminal prosecutions or suits for breach of contract after a certain period of time, so there are Statutes of Limitations that eventually bar the owner of property from suing to recover possession from one who has wrongfully entered the property. A property owner’s cause of action against a wrongful possessor of it is known as the action of ejectment. In virtually all states, the owner must bring his ejectment action within 20 years of the time the wrongdoer enters the land; some states allow only a shorter period, e.g., 10 years. (See infra, p. 38.)

1. Barring of stale claims:  One reason, of course, for the existence of a time limit on the bringing of an ejectment action is to bar stale claims. With the passage of time, witnesses’ memories grow dim and unreliable, and the reliance interest of the defendant (the wrongful possessor) in not having to face a lawsuit becomes stronger. Therefore, it is not unfair to have a cut-off point after which no further ejectment action may be brought.

B. Gaining title by adverse possession:  But a statute of limitations on actions to recover real property has an additional major effect, not shared by other Statutes of Limitations: once the limitations period has passed, the wrongful possessor now in reality has title to the land, since the original owner can no longer recover it from him. This title is said to have been gained by adverse possession (or “AP ”).

1. Clearing titles to land:  The doctrine of adverse possession thus furnishes the additional benefit of clearing titles to land.

Example:  A state has a 20-year statute of limitations on ejectment actions. X claims that he holds title to Blackacre, and wants to sell it to Y. Y will only have to check the land records going back 20 years – plus perhaps some additional period to cover the possibility that the running of the statute of limitations might have been “tolled” for some reason – in order to check X’s claim of ownership. The fact that, say, 100 years ago X’s alleged “predecessor in title” took the property by wrongfully entering on it, is irrelevant, since the right of the rightful possessor to regain possession has long since been barred by the statute of limitations.

C. Scope of this chapter:  Most of this chapter is devoted to a discussion of how one becomes the owner of property by adverse possession. A final section at the end of the chapter (infra, p. 39) discusses the kind of title which one gets by adverse possession, including the boundaries of the property acquired.