Adverse possession is a legal rule that allows an occupier (a squatter) of land (who does not have legal title to it) to obtain ownership of it if he can prove exclusive, continuous and uninterrupted possession of the land for at least sixteen (16) years in the case of land owned by an individual or thirty (30) years in the case of land owned by the State.
To establish adverse possession one must fulfill the following requirements:
1. Actual possession
There must be a sufficient amount of physical control over the property by the squatter. He must physically use the land as a property owner would. Examples include, clearing the land, planting crops, planting trees, harvesting the fruit on the land, grazing livestock, cutting timber, fencing the property, constructing a building/s, improving the building/s on the land and other improvements. Enclosure, that is, fencing of the land is strong evidence of adverse possession but it is not necessarily conclusive. Paying taxes does not establish actual possession, but may be admitted as evidence of the claim of adverse possession. The true owner’s payment of taxes does not affect the adverse possessor’s actual possession.
2. Intention to possess
The adverse possessor must provide evidence that he had the “intention to possess.” He must show that he intended to take the land for himself, to use it without the legal owner’s consent, not to share it with the legal owner. This might be inferred if a person takes possession of a house and changes the locks, or if a person moves a fence, or puts a lock on a gate. If the occupier acknowledges the true owner’s title in any way this will negate any intention to possess. For example, if the possessor starts paying the true owner rent to stay on the property.
3. Continuous possession
The adverse possessor must show that the property was held CONTINUOUSLY for the requisite time period, that is, at least 16 years for privately owned land and at least 30 years for state owned land. Time will continue to run in favour of the squatter unless and until he vacates the premises or acknowledges the true owner’s title. If possession is abandoned by a squatter, and there is a gap between the second squatter, the owner has possession in law during this gap and then land ceases to be in adverse possession – the limitation period (16 or 30 years) starts over from the time of the arrival of the second adverse possessor. Occasional activity on the land with long gaps inactivity will fail the test of continuous possession.
4. Exclusive possession
The adverse possessor must hold the land to the exclusion of the true owner. Anyone who enters the land with the permission of the true owner fails to have exclusive possession.
5. Open and notorious
The adverse possessor’s use of the property must be so visible and apparent that it gives notice to the legal owner that someone may assert a claim. The actions must be of such character that would give notice to a reasonable person. If the legal owner has knowledge, this element is met. It can also be met by fencing, posted signs, crops, buildings, or animals that a diligent owner would be expected to know about.
If a person is in possession of the land with the permission of the true owner, his possession cannot be adverse; the possession must be without the permission of the true owner.
If you believe you fit these requirements, it is possible that you have acquired a possessory title over the property. In order to get a document evidencing this, you will need to retain an Attorney-at-Law. The attorney will take you through the legal procedures required to obtain paper title to the property.
If you are the true owner of a piece of land, by deed or Certificate of Title, it is very important that you are aware of the law of adverse possession. If you fail to check up on your property and unauthorised persons decide to occupy it and they do so continuously for at least 16 years you stand the chance of losing ownership of your land. Therefore if you are the owner of a piece of land make sure to:
1. Check up on your property on a regular basis.
2. If there are tenants on your property ensure that you collect rent from them as long as they reside on the property.
3. If you are giving permission to anyone to occupy the property ensure to put it in writing; have the person you are giving permission sign the document as acknowledgement that you are the owner of the property.