Dirt Law at Ground Level

January 16-22, 2017

Adverse Possession: A Primer (I)

By W. Christopher Barrier
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

As I mentioned in a recent column, establishing or settling a title to certain real property often requires meeting specific factual requirements. As I also emphasized, that usually means all of the requirements, not just some or most. That certainly is the case in Arkansas when the vehicle for settling the title is application of the concept of adverse possession.

The Arkansas requirements list for establishing title by adverse possession is longer than that of some jurisdictions because while it has been generated over hundreds of years by the common law, it also has been added to by very specific Arkansas statutes.

The overall purpose of the concept has been similar to that of statutes of limitation generally – that is, to bring closure to claims that are or may be contested, within a reasonable time given that owners may have come to act in reliance on a perceived state of ownership.

But, the Arkansas statutes have added additional requirements to the common law list, most recently to deal with perceived abuses, given that takings by adverse possession always involve an involuntary loss or forfeiture, which is not favored in the law.

This column will attempt to identify the common law elements of adverse possession, in practical terms. The following column will attempt to describe the statutory requirements added in 1995 and revised in 2005 and how they work.

ELEMENTS OF ADVERSE POSSESSION AT COMMON LAW

The claimant must occupy the property claimed (which would include occupancy by tenants) exclusively for at least seven years. For example, possession of a pasture might not be exclusive if both the claimant and the record owner grazed cattle in the pasture. If the claimant should fence the pasture and otherwise exclude the record owner (and others), the possession would be exclusive.

The occupation must be continuous. Occupation for a couple of years of that pasture, followed by non-use for four years, and then a return for a year would not be sufficient. (The seven-year period which is central to adverse possession is not the same as a statute of limitations, perhaps for trespass, which would start to run at that first possession.) The term “claimant” may include previous occupants.

The occupation must be open and notorious and hostile – that is, it must be such that a reasonable observer could recognize it. It cannot be tucked away and out of sight, or somehow concealed, as with a fence line overgrown by dense undergrowth.

The claimant must occupy the property with the intent to hold against the true owner. That means a claimant must act as if she believes that she owns the property claimed, in good faith. However, possession may be “constructive”–that is, a claimant might occupy and possess a house and pasture without physically occupying the pasture, if she has color of title to both house and pasture, and pays the taxes on both. In this context, “color of title” means that the claimant’s occupancy is pursuant to a document, such as a deed or will, which also describes the claimed property. (The statutory supplements put a slightly different twist on the term “color of title.”).

The true owner must have actual notice of the claim or circumstances must be such that the notice is assumed.

Some uses are merely permissive – an occasional passage of the cattle mentioned above, standing alone, would not likely telegraph to the true owner that an adverse claim was intended. Regular passage, without comment from the true owner, would be more likely create a prescriptive easement, which would not require exclusivity.

The concept requires owners to stay informed about their property, but also requires claimants to communicate their intentions.

Chris Barrier is a Little Rock real estate lawyer.