Adverse possession is one of the few principles we will learn about owning real property. Real property consists of things that are land or things that are attached to that land, like a home. This differs from personal property, which is moveable, like a computer or book.

Adverse Possession


Adverse possession refers to one’s ability to possess the land after undisputed occupancy of the land for an established period of time. So, if A lives on B’s land for 10 or so years without B’s discovery, A could be entitled to title of the land.

There are four potential theories for why we have this rule:

  • Prevent frivolous claims – Acts like a statute of limitations
  • Correct title defects – If there was a mistake in the title, length of residency could be proof of title.
  • Encourage development – If B is not using the land but A is, it makes sense that A should continue to develop the land.
  • Protect personhood – If A lived there for 10 or so years, the land could become a part of who they are.

The standard rule for adverse possession is: Possession changes when the possessor maintains the land for an actual, exclusive, open and notorious, adverse and hostile, and continuous for the required of time.

The following cases address these elements.

Gurwit v. Kannatzer

788 S.W.2d 293 (Ct. App. Missouri 1990).

Trial court found in favor of the Gurwits. The Gruenders appealed.


Did the Gurwit’s obtain quiet title to the property through adverse possession.


The rule stated above is the one the court uses. Statutory period is 10 years.


The Gurwits met all the requirements for adverse possession, the property is theirs.


The geography of the land was pretty unique. The Gurwits had purchased land to the west of a road. However, the land directly to the east was the land of the neighbors. A road split the land so that the neighbors property was on either side of that road. When the Gurwits purchased their land, they cultivated the property that was on the west side of the road.

The land was treated as if it was their own. They cut down trees, allowed others to cut down trees, would possess the land, posted no trespassing signs, etc. Anyone in the area would tell you that they owned that land.


Each element was proved:

  • Possession – They used the land for personal functions
  • Actual – The land was possessed as the land called for. Even though there were periods of time that they were not present, it was used appropriately.
  • Open and Notorious – Everyone thought it was their land.
  • Exclusive – Only people went on the land at the permission of the Gurwits
  • Continuous – Properly maintained for the 10 year requirement.
Additional Notes

We have talked about the several ways one can obtain property:

  • Purchase
  • Create
  • Inherit
  • Gifted
  • Discover
  • Conquest

Now we are looking adverse possession. The rule above states the elements.


In this case, we can learn that use of the entire land is not required to possess the entirety of the land.


This is whether or not the potential claimers have exclusive use to the land. Even if the Gruender’s entered the land, did they have the permission of the Gurwit’s? This was satisfied in this case because everyone asked for permission to enter, there was no dispute of exclusive rights from the original owners, etc.

Open and Notorious

This means that there is no attempt to hide the use of the land. The purpose of this requirement is to protect the true owner of the land. If the owners put in any reasonable search, discover, and dispute the ownership of the land, then the owners maintain the right of the land. Often, one of these requirements is to give notice to the original owner.


Possession must be continuous depending on the nature of the land for the statutory requirement. Here, the land was wild. So, only minimal but consistent care of the land for a 10 year period meets the requirement.

Adverse and Hostile

This just means that the ownership was not authorized by the owner. For example, a lease is not adverse or hostile because they have permission to be there.

What kind of mentality is required? Most jurisdiction do not care about the mentality.

  • Good faith – This case is an example of good faith (believing the land to be theirs).
  • Bad faith
  • Neutral

Van Valkenburgh v. Lutz

106 N.E.2d 28 (N.Y. Ct. App. 1952).

This case is an example of additional statutory requirements.

Lutz won in the trial and first appeal, which was then appealed by Van Valenburgh.


Did the Lutz obtain adverse possession?


The claimer of the land must maintain that title throughout the claim.


Lutz has no claim to the land.


Lutz had purchased two lots, but because of a hill, they began to cultivate neighboring lots. They planted gardens and sold vegetables to neighbors. They even built a home for his brother on the neighboring lot.

However, the Van Valenburgh family moved across the street and animosity developed between them. The Van Valenburgh family then purchased the lots. To preserve the lot, Lutz went to an attorney. They then admitted that the Van Valenburghs owned the property in question, but was successful in obtaining an easement (pathway for access).

The Van Valenburghs then sued to eject the Lutz off the land. A new attorney suggested the adverse possession defense.


The big issue for Lutz is that he did not have claim of title under the New York Statute. This is because he admitted that the other family had ownership of the land. This was the mistake of the first attorney, but that cannot be changed. Even if he had possession before, he did not have possession after. Additionally, he did not properly occupy the land because of his knowing that he was not supposed to be there. Finally, his development was minimal.

The dissent disagrees and says that all the elements and cultivation of the land had been met.

Additional Notes

The extra requirements were have a substantial enclosure, or cultivate and improve the land. This case is one of the most heavily debated adverse possession cases.

Common Law Elements

Actual – This element was met because they used this land as it was intended to be used.

Exclusive – This element was met because the Lutz were the only individuals who entered the land and used it for its purpose.

Open & Notorious – This element was met because they had provided the true owners with notice through use of the land.

Continuous – This element is met because he maintained the land as it was intended for over 30 years.

Adverse and Hostile – This element is met because they had established bad faith, knowing it wasn’t their land but was using it anyways.

Additional Elements

Substantial Enclosure – The majority says that there was no boundary installed. The dissent disagrees saying that they had placed logs outlining the approximate boundary.

Cultivation and Improvement – The majority does not like the way the land was used. Here, there was no positive development. The dissent disagrees saying that they had farmed the land and cleared out most of the trees.

Finally, the majority argues that even if they did have title, then they gave up that title through admitting the Van Valenburghs had title.

Possessor’s State of Mind

Fulkerson v. Van Buren

961 S.W.2d 780 (Ark. Ct. App. 1998).

This case focuses on the claimant’s mindset must be when they attempt to obtain possession through adverse means. Many states say that the mindset is irrelevant, but some have an additional requirement.

Van Buren won in the trial court, but Fulkerson appealed.


Did Van Buren obtain title through adverse possession?


If the possessor recognizes the owner’s title to the land, there is no possession.


Reverse the trial court’s ruling.


Fulkerson owned land that had a church on it. Van Buren is the revered for a congregation that moved into the church. They were never 100% sure that they had possession of the church and asked Fulkerson if they could have title. Fulkerson refused and Van Buren recognized that refusal.

However, when Fulkerson moved to remove Van Buren and the congregation from the building and surrounding premises, Van Buren made the adverse possession claim.


Although most of the elements were met, the mindset of Van Buren was not proper. Because he recognized Fulkerson’s claim of title, Van Buren would not be able to adversely possess the land.

The dissent disagrees, saying that the congregation never really recognized Fulkerson’s right of title. This is evident by their continued use of the building, even after they were provided an eviction notice and required to vacate.

Proving Adverse Possession

Multiple claimants can aggregate time of possession to obtain a quiet title.

Howard v. Kunto

477 P.2d 210 (Wash. Ct. App. 1970).

Defendants (Kunto) lost and appealed.


What happens when the land description in the deed do not match what people are occupying? Can you “tack” your time onto the time of predecessors of the land?


“A purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.”


Defendant’s properly tacked. Reversed.


The Kunto’s had purchased a summer home on the shores of a Washington canal. Unfortunately, the surveyors had make a mistake in determining the lots. It turns out that the Kunto’s home was built on a lot 50 feet to the east of the lot described in the Deed. Howard, wishing to build, had the land surveyed and discovered that the Kunto’s home actually rested on his lot.

Howard sued for quiet title less than one year after the Kuntos moved in.


There was a mistake in the surveying and the Kuntos had acted in good faith on that survey. The previous owners had successfully possessed the land for longer than the statutory time and the Kuntos are able to tack their time onto that of the previous owners. This works because the Kuntos obtained the land in privity (it was sold, not obtained through abandonment).

Additional Notes

Adverse possession can be used to either establish quiet title or as a defense against a claim of title.

Tacking is when one claimant adds their time to another (who has satisfied the elements of adverse possession) to determine if there is continuous possession for the statutory possession. As a result, the continuous use is the element at issue in this case. The requirement for this is privity. Privity is a reasonable connection of successive occupation of the property. A good example of privity is a good faith purchase of the property.

Think of it in the following steps:

  1. Millers had established all the elements
  2. Privity was given when they sold the land to the Kuntos
  3. As a result, the Kuntos can tack their time onto the Millers possession.

The purpose of privity are to prevent wrongdoers or trespassers from obtaining from claiming title of the land. In other words, we want there to be a connection between the transfer of property.


The timeframe changes when the actual owner has a disability. For our purposes, a person is disabled if they are a minor, lack mental capacity, or are in prison. However, the disability must be existing at the time adverse possession begins. There are two approaches:

  1. The clock for adverse possession does not begin until the disability is removed.
  2. There is a limited amount of time after the disability ends in which time the suit must be brought.

Consider a minor in option 1. If a person owns the land when they are 16, and a statutory period is 10 years. Then the person would have to possess the land for another 10 years once the minor turns 18. So, possession would have to last for 12 years instead of 10.

Consider a minor in option 2. If the possessor has possessed the land for 10 years already, and the child reaches 18, then the possessor must wait for only 5 more years to claim title.

There are a few more rules to note:

  • The disability must exist at the beginning of the possession period.
  • Death ends all disabilities.
  • Disabilities are not allowed to be tacked.
  • Disability does not shorten the statutory time requirements.

On a separate note, you are note able to possess the land owned by a local, state, or federal government.

Adverse Possession of Chattels

A chattel is a form of personal property, not real property. It is possible to obtain title to personal property obtained by adverse possession.

Reynolds v. Bagwell

198 P.2d 215 (Ok. 1948).

Bagwell is the plaintiff. He won in trial court and the defendant appealed.


Can the statute of limitations bar the plaintiffs ability to recover?


If the item is obtained from the faith in good faith (believing the thief had obtained it properly) for the statutory period of 2 years, and if there was no fraud or concealment made, then the statute of limitations bars recovery.


Possession was obtained by the defendant for the required time. Reversed.


The plaintiff was a music professor who owned the violin. However, it was stolen from him and the defendant purchased it from a shop so his daughter could take lessons. Several years later, the owner discovered the violin in the possession of the defendant and sued to recover possession.

He claims that the defendant had obtained the violin through bad faith and had attempted to conceal it from the plaintiff by removing the original varnish.


The owner had purchased the violin from the shop and it was carried to and from practice each week. This extended past the statutory time of 2 years. Assuming there was no fraud or bad faith, this qualifies as possessing the chattel.

Here, the removal of the varnish did significantly alter the appearance but there was no evidence to suggest that it was done to conceal it from the plaintiff. In fact, the removal happened several years after purchase, which means that the concealment would have occurred after the statute of limitations had already run.

The big takeaway from this case is that the other elements of adverse possession typically apply to chattels and that concealment is often considered another element (to show that it was lacking concealment).

Additional Notes

The statutory period for personal property is much shorter than it is for real property. The reason for this is because real property is generally less valuable than real property. Another, more influential, reason is to ensure that you have a fluid market that could be reliable and secure.

The big difference between these elements is that we add the element of “concealment,” that is, “not concealed.” This may be considered a subcategory, or maybe even a replacement, of the “Open and Notorious” element.

There should be no concealment. However, if there is concealment, it should occur outside of the statutory period.

Although good faith is mentioned, it is far more important to meet the elements to transfer title.

O’Keeffe v. Snyder

416 A.2d 862 (N.J. 1980).

Some courts have instilled a “discovery rule” meaning that the statute of limitations begins at the time the true owner has discovered or reasonably should have discovered the missing property. This case is an example of the discovery rule in effect.

O’Keeffe is the plaintiff, she lost in trial court, won on the appeal, and the defendant appealed.


When did the cause of action start?


The statute of limitations (6 years in this jurisdiction) starts after the beginning of the cause of action. The discovery rule says that the cause of action will not start until the “injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action.”


Reversed and remanded to determine when O’Keeffe knew or shown have known who unlawfully possessed the paintings.


O’Keeffe had painted three paintings which ended up stolen. She failed to report the theft to the police and only talked about it among friends. The search failed to expand when her husband passed and she had to manage the estate. Some years later, under the counsel of a friend, she reported the theft to the Art Dealers Association.

Some years after the report, she discovered the painting were on display in an art gallery. She demanded the return of the paintings and sued when she was refused.


The discovery rule protects the true owner from the statute of limitations from running while they are putting forth the effort to look for the stolen property. The question really becomes, when does the statute of limitations start? Ultimately, they start when the effort to reasonably discover the property becomes inadequate. Here, it is up to the trial court to determine when the statute of limitations should start, depending on the efforts to discover by the plaintiff.

Ultimately, this shifts the burden of proof from the possessor to the true owner.

Additional Notes

Here, the court says that she did not lose title to the paintings. For a variety of reasons, she did not report the missing painting. Because she did not discover or have the ability to discover, the statute of limitations did not expire.

Under this rule, the burden of proof is on the owner. They must show that they had exhibited the best efforts to discover.

Most jurisdictions have not adopted this rule, but several have. So, when we address issues, we need to ask if the discovery rule applies. If so, this changes the approach. We would instead focus on whether or not the true owner had done the required diligence to discover.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, Property

Will Laursen

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