Adverse Possession Defined
In basic terms, adverse possession is "use" of real estate under certain circumstances that gives the person using it ownership rights. The legal term that analyzes whether the use of a piece of property results in the "adverse possessor" now owning it is called "quiet title." "Quiet title" litigation results in the judge’s establishing exactly who has title to (legal ownership of) the Real Estate.
Adverse possession has its origins in Roman Law going back to 200 BC until today, with roots in England, and as a result of colonialization of America, Adverse Possession arises in America’s common law. It is codified as follows in Indiana’s statute book: (IND. CODE § 32-23-1-3) When Title Vests by Adverse Possession Sec. 3. A person who has possessed land for the period described under section 4 [IC 32-23-2-4] of this chapter during the person’s lifetime under the following conditions during the person’s lifetime: (1) Cultivation; (2) Use; (3) Occupation; or (4) In gathering; but is not in possession of the land at death or is not in possession of the land at death after an assignment of the land by the person , with or without any setting apart of the land, vests an estate of inheritance in the land in the person’s heirs at law, as if the land had been conveyed to the person by lawful deed. As shown from the above statute, Indiana Title Statute 32-23-1-3 defines Indiana Adverse Possession. The time period for adverse possession of real estate in Indiana is 10 years. The act of Adverse Possession may be proven by submitting evidence of the following elements to a court of law: • Hostile or without permission of the owner • Continuous possession for at least 10 years • Open and notorious possession • Actual or constructive possession By establishing the elements of Adverse Possession, a party can take title away from the original owner and vest that title in the adverse possessor.
The Purpose of Adverse Possession, a History
In common law, the principle of adverse possession has its roots in English law. Writs of entry, a form of action used to reclaim land that had been wrongfully taken by another, took on a somewhat special purpose in England, since tenants could not sell the land. When a person came to possess land, they obtained the right to control it, and the time would pass until that land became theirs when the original owner lost the right to control or use the land, even without active ouster. Thus, if a tenant in possession of land for more than one year claimed title, and the tenant’s title was adjudicated against the landlord (a stranger to the title), the landlord’s title was barred. This practice was brought to the legal colonies of British America, and the principle continued in U.S. courts as well.
By the time Indiana became a state in 1816, adverse possession had found a place in its law regarding legal title to land. The act establishing the judiciary in Indiana in 1808 provided that "no person shall be permitted to enjoin any execution, or any judgment or decree, as provided by the first section of this act, or any decision or award of arbitrators, or any execution issued by virtue of such judgment, or that the lien of any execution shall continue longer than ten years, excepting when the lands may be sold upon execution in the life time of the debtor or judgment creditor, and his lands may have been set apart for the payment thereof. And no entry or action shall be commenced or continued upon any judgment rendered on or before the 15th day of November, 1811; but all such judgments shall be continued by law, and the same effects shall be had thereon as if the above provision had not been made, except as to interest and costs, where they have been paid by the obligors, debtors, or parties to said judgment." But initial decisions made before the Supreme Court of Indiana on the nature of property in the state had some influence on the actual title ascertainment practices of the circuit courts in the following decades.
In 1820, an action to quiet title was introduced into the law, modeled on the English bill of peace title.
In 1818, the Settlement law was passed by the legislature. This law provided for what we would now call a "squatters’ right" in return for meeting certain conditions, including payments annually and the extension of cultivation of some or all of each quarter section of land (160 acres in 4/40 acre plots) for a period of five years, among other things.
In 1821, a land sales law was passed that sold to highest bidders at public auctions, of which the proceeds were then divided between the original owners, the attorney general, the treasury and the land office.
Some other laws further made provisions for lands owned by married men over minors and illegitimate children, and also by owners of persons of low sanity, and provided provisions for escheatment in various circumstances.
In the period of 1852-03, for the first time, the law provided for adverse possession for a period of ten years, before a ruling in Worgan v. Baird (5 Blackf. 190 (1830)) which gave it the power of a bar against the original owner.
Indiana Statutory Requirements
Indiana’s adverse possession law has five elements (in other jurisdictions there may only be three or four elements to claim adverse possession) and they must be satisfied in order for a claimant to make a successful claim of adverse possession. The requirements in Indiana for adverse possession are: Open – Adverse possession must be open. Anything that goes on away from the property line I believe will be considered secretive and not "open"; such as an underground pipeline. Notorious – This is one of the disputed elements of adverse possession, or at least how it should be applied. Notorious means it will be public knowledge that the adverse possessor is making a claim over the area. Continuous – This is another of the disputed elements of adverse possession, or at least applies differently in different jurisdictions. To be continuous under Indiana law, the use itself (i.e. farming) does not have to be continuous. However, the adverse person must be on the property intermittently, on a year-round and seasonal basis. To show continuity, one way is to demonstrate that the adverse possessor performed necessary upkeep on a regular basis. Exclusive – A claim of adverse possession cannot be just similar to the majority of your property. It has to be "exclusive" of all people, including the owner of the land. Hostile – Hostile simply means adverse and not by consent. Beyond the specific legal requirements is what I believe are the most complex legalities of an adverse possession claim in Indiana. First, the adverse possessor can obtain a title of said property but the true owner keeps a vested interest for 10 years, which is a reversionary interest. However, after the passage of 10 years, the claim becomes permanent. Even though the claim may have started prior to that 10-year period. This means that such interests determined in the final 10 years are still subject to the adverse possessor (squatters) same claim.
The Adverse Possession Time Requirement
Under Indiana’s adverse possession law, the common law period of time during which you must have possessed the property before you can claim title to the property is ten years. And that ten years starts at the time you first possess the property.
However, even if you have possessed the property for ten years or more, there is no guarantee you will receive title to the property. Since adverse possession is a matter of equity, the defendant can defend against a claim of adverse possession if they can show the possession has not been exclusive.
Slightly different rules apply to claimants without color of title. Color of title is evidence of ownership by virtue of a written document or recorded instrument that may be invalid. A claimant without color of title who possesses property for ten years or more is entitled to claim title in court. The claimant must prove exclusive possession, but will not be required to prove that his or her possession was the equivalent of being the actual owner of the property.
The statute of limitations for a suit claiming title to property through adverse possession is 21 years. At the end of this time, after having been in property for that long and showing color of title, you will automatically obtain ownership of the property.
Common Indiana Adverse Possession Scenarios
One of the most significant cases regarding Indiana’s law of adverse possession is Evans v. Thompson, 10 Ind. 492 (1858). In 1847 two brothers owned adjacent tracts that were locked in litigation for years. One of the brothers built a fence that encroached onto the other brother’s property. After the fence was built and around 10 years after litigation over the properties had ceased, the brother who had built the fence began to live on the disputed portion of land. 20 years later, the brother in possession of the land acquired a warranty deed for it from his brother and his mother, who owned adjacent lots. After 30 years of occupying the land, the brother in possession of the land filed an action to quiet title. The Indiana Supreme Court held that the brother in possession was entitled to quiet title based on his adverse possession. In order to establish eminent domain, or ownership of land, one must provide the State with the right to acquire such property on just terms. In this case, the State of Indiana would have a hard time acquiring this property from the brother in possession because he possessed the land without interruption for 30 years.
McDonald v. Darnall, 127 N.E. 2d 334 (Ind.App.1955), is another leading case regarding Indiana adverse possession law. In 1943, the plaintiff built a six-foot tall stockade fence completely enclosing his property. On the rear end of the fence, the results of a survey performed in 1944 determined that part of the defendant’s land, Lot 341, was enclosed. After 11 years of treating Lot 341 as his own, the plaintiff learned of the survey results, and stopped using Lot 341 entirely. Then, in 1948, the defendant securely spiked a gate at the point where their properties border. The plaintiff then sued the defendant for an injunction so that he may remain in possession of Lot 341. The Indiana Court of Appeals held:
Even though we hold that the plaintiff’s use
and occupation of Lot 341 did not rise to the extent of ‘actual, exclusive, visible and
continuous, and notorious possession,’. . . all of which are necessary elements of title by
adverse possession, still, the plaintiff is entitled to equitable relief by reason of his
confusion of boundaries . He is entitled to have a right to be secure in his occupancy of
Lot 341, until that right is terminated by the doctrine of adverse possession. So until
that time, he is entitled to an order of our court quieting his title to Lot 341.
The doctrine of adverse possession only applies when the possession is open and exclusive. In the McDonald case, the plaintiff used the plot, Lot 341, as his own for 11 years without any issue. Once the plaintiff learned of Lot 341’s encroachment and stopped using it, the Court decided that he no longer has the right to claim an adverse possession of the Lot; and he should stop using it.
Another key case in determining Indiana adverse possession law is Scarry v. Scarry, 117 Ind. App. 606, 75 N.E.2d 256, 259 (Ind. App. 1947). The plaintiff in this case, Walter, owned land adjacent to land owned by his siblings, Keith and Jean. Walter wanted to sell all of this property, but felt that it was necessary to sell the parcels with the fences built between them, because the two separate properties could not be sold for a fair price. Therefore, the plaintiff brought the present action to quiet title to a strip of land still in possession of Keith and his wife through payment of the difference in the value of the property and improvements, after separating the value of the real estate. The trial court thus entered judgment in favor of the plaintiffs, and the Keiths’ appeal followed. The Court found that Keith and Jean made extensive improvements to the strip of land throughout their adverse possession to Walter’s land for more than 10 years, and paid the taxes for the entire period of adverse possession. In addition, the Court found that the Keiths conveyed the tract in question to their grantee in their sale of their entire tracts to Walter. The Court thus affirmed the trial court decision in favor of Walter by quieting title in the strip of land that the Keiths claimed to own, pursuant to Indiana code. The Scarry holding shows that even if incorporated improvements are made to the property, if possession of the property without interruption is continued for a 10-year period, the person in possession of the property may be entitled to quiet title of the property.
Handling Adverse Possession
Owners can take several steps to protect their property rights and defend against claims of adverse possession:
Adverse possession requires a certain degree of physical open, notorious, hostile, actual, and exclusive possession. Therefore, the mere open and notorious use of someone else’s property does not, by itself, constitute adverse possession. For an adverse possessor to have an legal adverse claim, all elements of adverse possession must be satisfied.
Just because an owner may not be using, or have been using, a property, does not authorize another to openly, notoriously, actually, and exclusively possess the property.
An owner can protect against claims of adverse possession by restricting access to a property that is not being use or by erecting permanent fencing to thwart a future claim of adverse possession, all of which bolster a claim to ownership.
The Consequences of a Successful Claim
In Indiana, if a claim of adverse possession succeeds, the claims of the titleholder are extinguished and the adverse possessor’s claim to ownership is cured or "perfected." Specifically, IC 34-11-2-11 (1998) provides in relevant part that: All actions shall be commenced within ten (10) years after the cause of action accrued, and not afterward, except for the following actions which shall be commenced within fifteen (15) years after the cause of action accrued: … (3) Actions for the recovery of real estate not covered by subdivision (1) or (2) of this section, at any time after the cause of action has accrued; … No action to recover real property is barred until the period prescribed by this section shall have elapsed. This section does not prevent the limitation in any other statute of a right of entry upon or for a continuing claim to recover real property. The adverse possessor of land has done all that is necessary (i.e. proven the land in question was adversely possessed for at least 10 years) to extinguish the former owner’s claims and cure any defect in title. The most important legal consequence of successful adverse possession is the changes in the legal "character" or "nature" of the new possessor’s claim. The new possessor now no longer holds a mere , uncertain or imperfect claim to the land that is subject to eviction with a proper showing by the landowner, but now holds a determinate freehold title. The adverse possessor essentially steps into the shoes of the former landowner and enjoys the same rights, powers and privileges formerly exercised by the former landowner. However, adverse possession does not provide for changes in parcels themselves, only the changes in ownership. Thus, if a parcel of land belonging to the adjoining estate of another shall pass by adverse possession to the adjoining owner, that owner cannot recover the land from his grantee.