Rick Bisson“Man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can’t be displaced without cutting at his life,” wrote U.S. Supreme Court Justice Oliver Wendell Holmes in a letter dated April 1, 1907. Holmes was discussing the doctrine of adverse possession.

Often referred to as “squatter’s rights,” a dictionary definition of adverse possession reads: “Adverse possession is a method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by state law.”

In layman’s terms, if property is not being used by its owner while another person is using the property, this other person (called an “adverse possessor”) becomes the new owner of the property.

At first glance, this doctrine seems completely contrary to any reasonable legal theory, since it seems to reward theft and penalize the innocent in favor of the guilty.

The roots of modern adverse possession doctrine extend back nearly 4,000 years. In Babylon circa 1720 BCE, a first Babylonian dynasty document known as the Code of Hammurabi described various aspects of prescriptive claims and the misuse of land. Also included in this document are several articles regarding punishment for those who failed to use land in a profitable manner and reward for those who were diligent in their cropland use.

For example, one modern translation for article 30 of the Code of Hammurabi states: If a chieftain or a man leaves his house, garden, and field, hires it out, and someone else takes possession of said property and uses it for three years, the house, garden, and field shall not be given to the first owner if he returns to claim it. Rather, he who has taken possession of it and used it shall continue to use it. This may be the earliest known written example of the concept that would come to be known as the statute of limitations.

When courts look at adverse possession claims, they apply a four-factor test. To qualify as adverse possession, the trespasser’s occupation of the land must be hostile, actual, open and notorious, and exclusive and continuous for a certain period of time.

The word “hostile” doesn’t mean the trespasser rides in guns blazing. Instead, courts follow one of three legal definitions of “hostile” when it comes to adverse possession.

1. Simple occupation. This rule defines “hostile” as the mere occupation of the land.

2. Awareness of trespassing. This rule requires that the trespasser be aware that his or her use of the property amounts to trespassing.

3. Good faith mistake. This rule requires the trespasser to have made an innocent mistake in occupying the property in the first place, such as by relying on an invalid or incorrect deed.

The second prong of the test that courts apply requires that the trespasser actually be physically present and treat the property as if he or she were the owner by maintaining and making improvements to it.

“Open and notorious” means that it must be obvious to anyone that a trespasser is on the land, such as planting and harvesting crops.

Lastly, the trespasser must possess the land exclusively and without interruption for a certain period of time. That means the trespasser can neither share possession with strangers or the owner nor can he or she give up use of the property, return to it later, and try to count the time that the property was abandoned as part of the “continuous” possession time period. In Maine, the statutory period is 20 years.

To avoid unknowingly becoming an adverse possessor when purchasing a property, be sure to enlist the services of an expert title company or closing attorney. They can ensure that the property has a clear title and that the deed legally and successfully conveys the property.

If you are a landowner hoping to avoid any claims of adverse possession, know your property’s boundaries and keep a close eye on it. For answers to your questions about adverse possession, seek the counsel of your trusted Realtor and real estate attorney.
