Unwritten Title - Practical Boundary Surveying - page 244

Adverse Possession is a species of unwritten title. It is taking property
belonging to another without their consent.
Possession must be Actual . There must be some sort of physical occupation of the
property. Building a fence on an abutting property would be actual possession. So
would erecting a building. Mowing a lawn, planting shrubs or paving a driveway
could be enough to constitute actual possession. Merely putting a plan on record,
without more, does not constitute actual possession because there is no physical
occupation of the land.
Possession must be Open and Notorious . Possession has to be visible. In addi-
tion to requiring physical occupation, the occupation must be open and notorious.
The possession must be such that the rightful owner of the property would be on
notice of the possession. The means of occupying the land must be visible in such
a way that the owner would see the possession were she to inspect the property.
The owner needn't actually see the possession however. The fact that the owner
lived in another state and failed to inspect the property would not exempt the
owner from the requirement. The possession may be deemed open and notorious
if it would be obvious to any person inspecting the property. Possession would not
be open and notorious, for example, if the possessor were to erect marks of pos-
session only at night and remove them during the day.
The possession must be Hostile or adverse to the interests of the owner. This
generally means nothing more than saying that the possession is without permission
of the rightful owner. Permissive use defeats adverse possession. If a property owner
allowed a neighbor to erect a fence on the owner's side of the common boundary
by giving the neighbor permission to do so, the neighbor could not thereafter claim
adverse possession of the land between the fence and the record boundary.
In a few jurisdictions the state of mind of the possessor is material in determin-
ing hostility. If the possessor believes that he is occupying to the true line then
there can be no hostility and therefore no adverse possession. The majority of
states view this as a bad rule. It should be enough that the possessor was actually
occupying the land of another.
The possession must be Exclusive . The possessor may not share possession
with the rightful owner. The possessor must effectively oust the rightful owner
from the land. Exclusivity does not mean that the possessor may not share his
possession with another person who is not the rightful owner. For example if two
brothers who own a farm intentionally fence off their neighbor's property both
brothers share in possession against the neighbor.
The possession must be Continuous and uninterrupted. The time required for
possession varies with the jurisdiction, but it is often between 5 and 20 years. This
time is sometimes referred to as the statute of limitations. If the rightful owner is
successful in ousting the possessor from the land prior to expiration of the stat-
ute of limitations, there is a break in possession and clock is reset to zero. The