Titles - Adverse possession

Learning Outcomes

This article explains adverse possession for the MBE, including:

• Precisely identifying each required element—actual, open and notorious, exclusive, hostile, and continuous—and translating statutory language or fact-pattern clues into element-by-element analysis.
• Distinguishing truly adverse occupation from permissive use, with attention to leases, licenses, family arrangements, co-tenancies, and grantor-in-possession fact patterns that frequently appear on exams.
• Applying continuity rules, determining when brief absences, seasonal use, abandonment, re-entry by the true owner, or litigation interrupt the limitations period.
• Using tacking and privity to combine successive possessions, while recognizing when an ouster or unrelated trespasser breaks the chain so the clock must restart.
• Evaluating how disabilities, present versus future interests, defeasible fees, and government ownership affect when the statute begins to run and whose interest can be cut off.
• Analyzing the interaction between adverse possession and private land use controls, including restrictive covenants, easements, and boundary line agreements.
• Assessing the impact of adverse possession on marketable title and typical bar-exam conveyancing questions, including when a quiet title action is required.

MBE Syllabus

For the MBE, you are required to understand adverse possession as a method of acquiring title to real property, with a focus on the following syllabus points:

• Elements of adverse possession: actual entry, open and notorious, exclusive, hostile, and continuous possession for the statutory period.
• How the statute of limitations runs and what counts as interruption.
• Tacking of successive periods of possession and the requirement of privity.
• Effect of disabilities (minority, insanity, imprisonment) on the running of the limitations period.
• Adverse possession against present versus future interests, including defeasible fees.
• Effect of covenants, easements, and government ownership on adverse possession.
• Relationship between adverse possession and marketable title in conveyancing.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a required element for adverse possession in the majority of states?
   1. Actual possession
   2. Open and notorious use
   3. Payment of property taxes (in all states)
   4. Hostile possession
2. If an adverse possessor occupies land for 10 years, then sells her interest to another who occupies for 5 years, and the statutory period is 15 years, which of the following is true?
   1. The second possessor cannot claim title by adverse possession.
   2. The second possessor can claim title only if there is privity.
   3. The statutory period restarts with the second possessor.
   4. Tacking is never allowed.
3. The statute of limitations for adverse possession will NOT begin to run against the true owner if:
   1. The owner is a minor at the time the adverse possession begins.
   2. The owner is declared insane after adverse possession begins.
   3. The owner is imprisoned after adverse possession begins.
   4. The owner is absent from the country when adverse possession begins.

Introduction

Adverse possession is a doctrine under which a person who is not the record owner of land may acquire valid title by occupying the property for a long enough period and in a particular manner. It functions through the statute of limitations for ejectment: if the record owner does not sue to recover the property within the limitations period, the owner’s right to eject the possessor is barred, and title effectively shifts to the possessor.

The doctrine serves several policy goals: it encourages productive use of land, protects the expectations of long-term possessors, and promotes certainty by “quieting” old disputes about ownership. For exam purposes, focus on the technical elements and how they interact with special situations such as disabilities, co-tenancies, and future interests.

Key Term: Adverse Possession
Acquisition of title to real property by possessing it in a manner that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period.

Most jurisdictions have a statutory period of 10, 15, or 20 years; on the MBE, the question will usually tell you the period. A few states add extra requirements (e.g., payment of property taxes or possession under “color of title”).

Elements of Adverse Possession

To acquire title by adverse possession, the possessor must satisfy all of the following elements for the entire statutory period:

• Actual possession
• Open and notorious possession
• Exclusive possession
• Hostile (adverse) possession
• Continuous possession

Some students summarize this as “A ONCE”: Actual, Open, No permission (hostile), Continuous, Exclusive.

If any element is missing for any part of the statutory period, adverse possession fails.

Actual and Exclusive Possession

Actual possession

The possessor must physically use the land in a way that an ordinary owner of that type of land would use it—living on it, farming, building, fencing, or otherwise exercising control. The primary purpose of this requirement is to give the true owner notice that someone is occupying their land and to define the scope of the claim.

Key Term: Actual Possession
Physical use or occupation of the land in a manner that a typical owner of similar property would make.

As a general rule, the adverse possessor gets title only to the portion actually possessed. There is an important exception when the possessor has color of title.

Key Term: Color of Title
A written instrument (such as a deed or will) that purports to convey title but is ineffective for some reason not obvious on its face (e.g., grantor lacked title).

If the possessor enters under color of title describing a larger, unitary tract, and actually occupies a reasonable portion of that tract, courts often award constructive possession of the whole tract described in the instrument, as long as the occupation would put an ordinarily diligent owner on notice.

Key Term: Constructive Possession
Legal possession of the entire parcel described in a defective instrument based on actual possession of part of it, where the instrument gives color of title to the whole.

Exclusive possession

Exclusive possession means the possessor is not sharing control with the true owner or the public at large. The possessor may share with others who are part of the adverse possession effort.

Key Term: Exclusive Possession
Possession that is not shared with the true owner or the general public; the possessor behaves as if they are the sole owner.

If two people jointly occupy land as adverse possessors (for example, they together fence and farm it), and the other elements are met, they can acquire title together as tenants in common.

Co-tenants and exclusivity

Possession by one co-tenant (e.g., a tenant in common) is not adverse to the others, because each has an equal right to possess the whole. Sole occupancy by one co-tenant is presumed permissive unless the co-tenant clearly repudiates the co-tenancy.

Key Term: Ouster
A co-tenant’s clear denial of another co-tenant’s right to possess, such as by refusing entry or asserting exclusive ownership.

Only after an ouster (or an equivalent clear repudiation) will the occupying co-tenant’s possession become hostile to the other co-tenants, and the statute will begin to run against them.

Open and Notorious

Possession must be sufficiently visible and obvious that a reasonably attentive owner would be put on notice that someone is occupying their land. Secret or hidden use is not enough.

Key Term: Open and Notorious Possession
Possession that is visible and apparent so that a reasonable inspection would reveal the occupancy.

Typical owner-like acts that are open and notorious include:

• Building structures or fences
• Farming or grazing in a noticeable way
• Regularly using a roadway across otherwise unused land when the use is clearly apparent

By contrast, purely underground uses (like a buried pipe) that have no surface manifestations are generally not open and notorious, unless above-ground connections or other signs make the use discoverable upon reasonable inspection.

Hostile Possession

Hostility means the possessor’s occupation is without the true owner’s permission. It does not require ill will, aggression, or express hostility.

Key Term: Hostile Possession
Possession without the true owner’s consent; the possessor claims the land as their own, regardless of their subjective state of mind.

Under the majority (objective) rule—follow this for MBE questions—the possessor’s state of mind is irrelevant. Hostility is satisfied if the possessor is on the land without permission, whether they:

• Honestly and mistakenly believe they own it,
• Know they are trespassing, or
• Do not care who owns it.

Some minority rules focus on the possessor’s mindset (requiring either good-faith belief in ownership or, conversely, knowledge of trespass), but those approaches are unusual on the exam.

Key Term: Claim of Right
The possessor’s assertion—express or implied—of ownership against the world, often reflected in acts such as fencing, building, or recording a deed, regardless of whether the claim is legally valid.

Possession under a defective deed (“color of title”) or a mistaken belief that the land is within one’s boundary lines typically satisfies the claim-of-right/hostility requirement.

Permissive entry

If the possessor enters with the owner’s permission—under a lease, license, or express consent—the possession is not hostile. It will remain permissive until the possessor clearly communicates a change, such as:

• Explicitly telling the owner they now claim the land as their own,
• Refusing to allow the owner access, or
• Engaging in acts inconsistent with the original permission (e.g., a tenant denying the landlord’s title).

Only after that clear repudiation will the limitations period start.

Special hostility situations

• Co-tenants: As noted, possession is not hostile to other co-tenants absent ouster.
• Grantor in possession: If a grantor conveys land but then remains in possession, their continued possession is presumed permissive and subordinate to the grantee’s title. Only a clear repudiation—such as the grantor asserting ownership against the grantee—starts the clock.
• Boundary line agreements: Neighboring owners may informally agree on a boundary (often marked by a fence) when the true line is uncertain. Courts often honor such boundary line agreements if there was uncertainty and long acquiescence to the agreed line.

Key Term: Boundary Line Agreement
An agreed-upon boundary between adjoining landowners, adopted in the face of genuine uncertainty and followed for a long period, often treated by courts as the true boundary.

Boundary line questions may involve both this doctrine and adverse possession; focus on uncertainty, agreement, and long-term acquiescence.

Continuous Possession and Tacking

Possession must be continuous, but this does not mean constant physical presence. The possessor must use the land as an average owner would use similar land.

Key Term: Continuous Possession
Use of the property over time in a pattern consistent with how a typical owner would use that type of property throughout the statutory period.

Examples:

• Seasonal occupation of a hunting cabin can be continuous if that is the normal pattern for such property.
• Intermittent grazing on rural land can be continuous if that is the usual owner use.

If the true owner re-enters and regains possession (physically ousts the possessor) before the limitations period runs, the adverse possession is interrupted and the clock resets if the possessor later returns.

The statute of limitations begins running when the possessor first enters adversely (the moment the owner could sue). Filing suit alone does not stop the period; the owner must pursue the case to judgment. A judgment for the owner will “relate back” to the filing date.

Tacking

Successive periods of adverse possession by different possessors can be added together (“tacked”) to meet the statutory period, but only if there is privity between them.

Key Term: Tacking
The combining of successive periods of adverse possession by different possessors who are in privity, to satisfy the statutory period.

Key Term: Privity (Adverse Possession)
A voluntary transfer of possession from one possessor to another—by deed, will, descent, or even an agreed oral transfer—such that their possessions are linked.

Key points:

• Tacking is permitted when the later possessor takes from the earlier one by descent, devise, deed (even if the deed misdescribes the land), or an agreed oral transfer of possession.
• Tacking is not allowed when a new possessor ousts a prior adverse possessor or simply enters after the prior possessor abandons; those are independent, not linked, possessions.

Disabilities

A legal disability can delay the running of the statute of limitations, but only in narrow circumstances.

Key Term: Disability (Adverse Possession)
A legally recognized condition—typically minority, insanity, or imprisonment—that, if present when adverse possession begins, prevents the statute of limitations from running until the disability is removed.

Core rules:

• The disability must exist at the time the adverse possession begins.
• Disabilities arising after the possessor’s adverse use starts do not toll the statute.
• Disabilities of successors in interest (heirs, devisees) do not matter.
• Multiple disabilities cannot be tacked together; the owner only gets the benefit of those existing at the outset.
• Many states cap tolling at a maximum period (e.g., 20 years), after which the statute runs notwithstanding continuing disability.

Once the disability ends (for example, the owner reaches majority or is restored to sanity), the statute begins to run, often with a specified grace period.

Effect on Future Interests

Adverse possession generally runs against the holder of the present possessory estate, not against holders of future interests, until those interests become possessory.

Key Term: Future Interest
A nonpossessory property interest that gives its holder a right to possession in the future, such as a remainder, reversion, possibility of reverter, or right of entry.

Key consequences:

• If X adversely possesses land held by A for life, with remainder to B, X can acquire A’s life estate by adverse possession (if the period runs during A’s life), but X does not thereby cut off B’s remainder. The statute as to B does not start until A dies and B’s interest becomes possessory.
• If adverse possession begins while the land is held in fee simple and the owner later creates a life estate and remainder, the adverse possession continues running against the whole fee. A subsequent division into present and future interests cannot defeat an already-running adverse possession.

Defeasible fees

Adverse possession interacts with certain future interests created by defeasible estates:

Key Term: Possibility of Reverter
A future interest retained by a grantor following a fee simple determinable, under which the estate automatically ends upon the occurrence of a specified event.

Key Term: Right of Entry (Power of Termination)
A future interest retained by a grantor following a fee simple subject to condition subsequent, giving the grantor the power to terminate the estate upon breach of the condition.

• For a fee simple determinable (“to A so long as used for school purposes”), when the condition occurs, the fee automatically ends and the grantor is entitled to possession. From that event forward, the grantor can sue to recover possession. If the grantor does not act within the limitations period while the property is held adversely (e.g., still used in the prohibited way), the adverse possessor can acquire title, extinguishing the possibility of reverter.
• For a fee simple subject to condition subsequent (“to A, but if used for nonresidential purposes, grantor may re-enter”), the grantee’s estate does not automatically end. The grantor must exercise the right of entry to cut it off. In many states, the statute of limitations does not begin running against the right of entry until the grantor acts to terminate, although courts may apply laches if the grantor delays unreasonably.

Effect of Covenants, Easements, and Government Ownership

Private covenants

Land is often subject to recorded restrictive covenants (e.g., “residential use only”). How adverse possession affects them depends on how the possessor uses the land.

• If the possessor uses the land in violation of the covenant for the entire limitations period (and the other adverse possession elements are satisfied), she takes title free of the covenant—the covenant is effectively extinguished as to that parcel.
• If the possessor complies with the covenant, she acquires title subject to the covenant, which remains enforceable by those entitled to its benefit.

Easements and prescriptive rights

Adverse possession concerns title, but similar principles apply to nonpossessory interests.

Key Term: Prescriptive Easement
A nonpossessory right to use another’s land acquired by open, notorious, adverse, and continuous use for the statutory period, without exclusivity.

Prescriptive easements do not require exclusive use; the owner may also use the way. By contrast, adverse possession of title does require exclusivity.

Government-owned and registered land

Certain land cannot be acquired by adverse possession:

• Land owned by federal, state, or local governments (absent an unusual statute allowing it).
• Land registered under a Torrens system (title registration), where registration protects the record owner against claims by adverse possessors.

Adverse Possession and Marketable Title

Adverse possession, once complete, gives the possessor legal title to the estate acquired. Title “relates back” to the date of initial entry for many purposes. However, there are important conveyancing consequences.

Key Term: Marketable Title
Title reasonably free from doubt and from the risk of future litigation, such that a prudent buyer would accept it in a land sale transaction.

On the MBE:

• A title based solely on adverse possession is generally not considered marketable unless and until it has been established in a judicial quiet title action or otherwise confirmed. The concern is that a record owner might later contest the adverse possessor’s factual showing.
• Even though not marketable, the adverse possessor does own the property and may convey it. Any conveyance must comply with the Statute of Frauds (a written deed or other writing); an oral “renunciation” back to the former owner is ineffective.

Once a court enters a judgment quieting title in the adverse possessor, that judgment can be recorded and will usually cure marketability concerns.

Payment of Property Taxes

Most jurisdictions do not require the adverse possessor to pay property taxes. However:

• A minority of states make payment of taxes an additional element of adverse possession.
• Even where not required, paying taxes is strong evidence of a claim of right and of owner-like behavior.

Always read the fact pattern carefully; if the statute in the problem mentions tax payment, treat it as an element.

Effect of Government Ownership

Adverse possession does not run against government-owned land—whether held by federal, state, or local government—unless a statute clearly allows it. This is heavily tested.

In addition, as noted, land registered under a Torrens system is typically immune from adverse possession; the register is conclusive as to title.

Worked Example 1.1

A enters onto B's land, builds a fence, and farms the land for 20 years. B lives in another state and never visits. The statutory period is 15 years. Can A acquire title by adverse possession?

Answer:
Yes. A's possession is actual (farming), open and notorious (visible fence and cultivation), exclusive, hostile (no permission), and continuous for more than the 15-year statutory period. A acquires title by adverse possession.

Worked Example 1.2

C occupies D's land for 8 years, then sells her interest to E, who occupies for 7 years. The statutory period is 15 years. Is E entitled to claim title by adverse possession?

Answer:
Yes, if there is privity between C and E (such as a deed or agreed transfer of possession), E can tack C's 8 years to her own 7 years to reach the 15-year statutory period. Without privity—if E simply ousted C—tacking would not be allowed.

Worked Example 1.3

F, a minor, owns land. G enters and possesses the land for 12 years while F is still a minor. The statutory period is 10 years. Can G acquire title by adverse possession?

Answer:
No. Because F was a minor when G's possession began, the statute of limitations does not start to run until F reaches majority. G’s 12 years before F becomes an adult do not count; the statutory period only begins once the disability (minority) ends.

Worked Example 1.4

H and J are tenants in common of Blackacre. H moves in and lives there alone for 25 years, paying all taxes and expenses. The statutory period is 20 years. H never tells J she is claiming exclusive ownership, but she does not invite J to use the land. Can H acquire J’s interest by adverse possession?

Answer:
Probably not. Mere sole occupancy by one co-tenant is presumed permissive and consistent with the co-tenancy. Absent an ouster or a clear repudiation of J’s rights, H’s possession is not hostile as to J, so the statutory period never begins to run against J’s interest.

Worked Example 1.5

Owner conveys “to A for life, then to B.” X enters adversely onto Blackacre and remains in possession for 12 years. The statutory period is 10 years. A is still alive. What interests, if any, has X acquired?

Answer:
X has acquired A’s life estate by adverse possession, because A held the present possessory estate during X’s 12 years of adverse use. However, X has not yet affected B’s remainder; the statute does not begin running against B until A dies and B’s interest becomes possessory.

Worked Example 1.6

O conveys Greenacre “to City for so long as it is used as a park.” The city stops using the land as a park and leases it to a private warehouse company, which occupies it for 18 continuous, open, exclusive, and hostile years. The statutory period is 15 years. Does the warehouse company have title?

Answer:
Yes. When the city stopped using the land as a park, the fee simple determinable ended and O (or O’s successors) became entitled to possession by possibility of reverter. The warehouse company’s open, hostile possession for more than 15 years without action by O’s successors bars their claim and gives the warehouse company title.

Worked Example 1.7

N occupies a vacant lot for 12 years, using it exactly as nearby residential owners do, in open, continuous, exclusive, and hostile fashion. A recorded covenant on the lot limits use to single-family residential purposes. N uses the lot for a small commercial auto repair shop throughout the 12 years. The statutory period is 10 years. What title does N acquire?

Answer:
N acquires title free of the covenant. N’s adverse possession satisfies all elements for more than the statutory period, and N used the land in violation of the recorded covenant throughout that time. As a result, the covenant is extinguished as to that parcel.

Exam Warning

On the MBE, the statutory period and any special requirements (such as payment of property taxes or possession under color of title) will be stated in the fact pattern. Do not assume a common-law 20-year period unless the question is silent. Carefully distinguish:

• Permissive use (license, lease, family permission) versus hostile possession.
• Possession against a present estate versus a future interest holder.
• Title acquired by adverse possession (legal title) versus marketable title in a contract of sale.

Revision Tip

Remember: permission destroys hostility. If the true owner gave permission for the possessor’s use, the possession is not adverse. Hostility can arise later only if the possessor clearly repudiates that permission and the owner has reason to know of the change.

Key Point Checklist

This article has covered the following key knowledge points:

• Adverse possession requires actual, open and notorious, exclusive, hostile, and continuous possession for the statutory period.
• Actual possession must resemble typical owner use; constructive possession of the whole tract is possible with color of title.
• Exclusive possession means no sharing with the true owner or the public, though multiple adverse possessors may share and acquire as tenants in common.
• Hostility is possession without the owner’s consent; the possessor’s subjective intent is irrelevant under the majority rule.
• Possession that starts permissively (tenant, licensee, family member) remains non-hostile until clearly repudiated; co-tenants must oust or repudiate to start the clock.
• Continuity requires owner-like use; seasonal or intermittent use can qualify if consistent with the land’s character.
• Tacking of successive possessions is allowed only when there is privity between possessors; ouster or abandonment breaks the chain.
• Disabilities toll the statute only if they exist when adverse possession begins; later-arising disabilities and disabilities of successors do not affect the running of time.
• Adverse possession runs against present possessory estates; it does not run against future interests until they become possessory.
• Possibility of reverter and right of entry interact differently with adverse possession; automatic reversion starts the clock, while a right of entry typically requires action.
• Adverse possession can extinguish restrictive covenants if the possessor uses the land in violation of them for the entire statutory period; otherwise they remain in force.
• Government-owned and Torrens-registered land generally cannot be acquired by adverse possession.
• Title obtained by adverse possession is legal title but is not automatically marketable; a quiet title action may be needed before sale.
• Payment of property taxes is required only in a minority of jurisdictions but is strong evidence of owner-like behavior.

Key Terms and Concepts

• Adverse Possession
• Actual Possession
• Exclusive Possession
• Open and Notorious Possession
• Hostile Possession
• Claim of Right
• Color of Title
• Constructive Possession
• Continuous Possession
• Tacking
• Privity (Adverse Possession)
• Disability (Adverse Possession)
• Ouster
• Boundary Line Agreement
• Future Interest
• Possibility of Reverter
• Right of Entry (Power of Termination)
• Prescriptive Easement
• Marketable Title