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The purpose of this web page is to provide a brief overview of the legal concepts of adverse possession and prescription.
Occasionally one hears the statement that “possession is 9/10ths of the law” implying that "if I possess something, the law supports my claim that I control the item even though others may argue that they are the owner of the item." Even though this statement may be an exaggeration, there is some truth to the idea.
- A person can acquire ownership of someone else’s property by possessing it, using it and generally acting as its owner for an extended period of time. This legal concept is referred to as adverse possession – if I possess property for an extended period of time without the permission of the owner, the law will allow me to acquire ownership of the property.
- The corollary is the legal concept that “if you have legal rights, assert them, or you may lose them.” This idea of asserting your rights arises in situations other than property, but on this page, we will use land as our example.
Adverse possession of land – If I occupy land owned by someone else without having the owner’s permission to be on the land, I am trespassing (I am committing a tort). The owner has the right to have me removed from the land. However, if the owner does not have me removed and I continue to occupy the land without the owner’s permission, and I act like the owner (that is, I occupy the land, I use it, I control it, I may even pay the taxes as if I was the owner), the law will eventually consider me to be the owner.
Generally, the criteria for adverse possession are
- Actual possession -- the adverse possessor is occupying the land and using it in a way that is appropriate for its location and characteristics
- Open possession – the adverse possessor's activities on the land can be observed by anyone interested enough to look
- Exclusive possession -- the adverse possessor is keeping everyone else off the land, including the owner
- Notorious possession – the adverse possessor's activities on the land are known to the neighbors or community; the adverse possessor is not keeping his or her on activities on the land a secret
- Hostile or adverse possession – the adverse possessor does not have the owner’s permission to be on the land
- Continuous possession – the adverse possessor uses the property on an ongoing and uninterrupted basis; "Once I started to use the property, I have continued to use the land without interruption; I have not used the property for several years, left it for several years and then came back to use it again; that would not be continuous use."
"To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant. To constitute an effective adverse possession, all the elements must be satisfied, and if a single element is wanting, the possession will not confer title." Gruebele v. Geringer, 2002 ND 38, 640 N.W.2d 454
The time period for adverse possession is set by state law. In North Dakota, the time for adverse possession is 20 years, unless it is a defined tract of land and the adverse possessor has been paying the property tax, then the time period is only 10 years.
The law does not want someone to loss or forfeit their legal rights. Accordingly, North Dakota statute allows adverse possession only if the requisite conditions can be proven by the adverse possessor.
N.D.C.C. 28-01-07. Presumption against adverse possession of real estate. In every action for the recovery of real property or for the possession thereof, the person establishing a legal title to the premises must be presumed to have been possessed thereof within the time required by law, and the occupation of such premises by any other person must be deemed to have been under and in subordination to the legal title, unless it appears that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action.
Adverse possessors establish that they have acquire ownership by successfully prosecuting a quiet title action.
Acquiring an easement through continuous use is referred to as prescription.
A use of land creates a prescriptive easement if "the use is (1) adverse, (2) continuous and uninterrupted, and (3) for the period of prescription." "[T]he required period of adverse use to acquire an asement by prescription is twenty years." The trial court found that the Gajewskis continuously and without interruption "maintained a mailbox on this piece of property owned by Mr. Taylor for far in excess of twenty years." The trial court also found that this use of the land was adverse because "Mr. Taylor would not have had to allow the mailbox there had he not wished [and] had he acted within twenty years of the initial siting of the mailbox." Gajewski v. Taylor, 536 N.W.2d 360 (N.D. 1995)