Adverse Possession Definition
The concept of adverse possession is codified in Virginia law under Virginia Code Section 8.01-220. In essence, it defines a process for an individual to claim ownership of a parcel of land occupied by that person without the formal owner’s consent. Adverse possession is a legal doctrine that has its roots in antiquity; indeed, the doctrine appears in Roman law and is mentioned in the English legal texts going back to at least the 12th century.
The Virginia statute governing adverse possession requires that the individual claiming adverse possession take uninterrupted possession of the land for a minimum period of time. The statutory periods for adverse possession vary depending on the situation: The burden of proof for establishing adverse possession is initially on the person claiming title. However , the claimant may rely on the presumption that successive conveyances of the land for the statutory period are sufficient to establish adverse possession. The presumption only arises, however, in clear situations where there are multiple recorded conveyances of the land being adversely possessed. The burden of proof then shifts to the original owner to show the possessions were permissive, not adverse.
Elements of Possession in Virginia
One of the key aspects of Virginia’s adverse possession law is that a plaintiff attempting to claim property through adverse possession must show that the area adversely possessed has been clearly delineated. Not only is showing this necessary due to Virginia’s statute of frauds, it is also generally something required by the court as part of the prescriptive easement analysis. There are three main requirements in Virginia adverse possession law.
First, since Virginia adverse possession claims are judged upon the statutory period of twenty years, the plaintiff must have adversely possessed the land for at least that period of time. The statutory period is measured in whole years, so possession of land on January 1, 2000 through December 31, 2000 would not start a new twenty-year clock with a first year of adverse possession.
Second, the possession of the land must be open and notorious. This means that the possession must be obvious, to the point that everyone would think that the possessor was occupying the land as his own. The open and notorious requirement is judged as whether an ordinary person could have seen the use of the land by the possessor. The possession need not be hostile, nor even illegal; the only requirement is that the possession must be clear to the entire world. As stated in Snell v. Ruffin, 509 S.E.2d 109 (Va. 1998) "[The possession] cannot be secretive or clandestine," but rather must be "known, evident and conspicuous to all who may use the land…".
Third, the possession must be continuous. Continuous, as a requirement in Virginia adverse possession claims does not mean that the possessor must use the land, it simply means that the possessor must have use of the land so that it is unbroken. There are two qualifications to the continuous requirement:
During the period of possessor’s adverse possession, he must pay the taxes on the property, or at least the portion of the property that he is claiming under adverse possession. Furthermore, since Virginia is governed by a race-notice standard for real estate, if the true owner of the land sells the part adversely possessed to a third party for value and the third party then records the deed of conveyance, the third party will take title to the land, despite the fact that the first possessor was there first. This can be very problematic when the first possessor is unaware of the adverse possession requirement to pay the taxes on the land.
Notorious and Hostile Possession Defined
A common question to hit the blog each week is "what the heck is notorious and hostile possession?" In the context of adverse possession, notorious and hostile possession means possession that is open, notorious, and visible to anyone passing by, and which is not conducted with the permission of the owner. It is easy to see why it comes up so often, because it has buried in it an important aspect of adverse possession in Virginia: it can never be legal, or it fails by operation of law. If you and I are joint deed owners, then I draft a Will leaving my part to you, it will not be adverse possession, because I never intended to give up my part in the first place. So too for a tenant, or a licensee. It is only when we have come to blows in the open market, and you have encouraged me to file suit, and we are now adversaries, that you can have adversely possessed my land. This principle rears its head in other areas of law as well. In deed and insurance cases, we routinely see the "without the owner’s permission" requirement. The reason for it is singular, and flows from the principle of notorious and hostile possession, even if the cases themselves never acknowledge it. For example, where you encroach on or flood my land without permission, we have an adversarial relationship, and your acts can result in trespass (the classical case) or take when they are hostile to my interests. So too in the insurance context. In the case of a windstorm, you did not intend to be generous to me. Rather, you were building the fence to keep me out. So, even if you abut my land, your fence is treated as a trespass, because a windstorm would have done the same damage to my land anyway. So, notorious and hostile possession is important for your adverse possession claim. Only when the possession is notorious and hostile, and not legal, will you benefit by the doctrine. For all of the reasons discussed in this post, notorious and hostile possession is but one of many equitable doctrines that drive the courts toward ultimately granting a just result.
Actual and Continuous Use of Property
Not just any use commands the title of adverse possessor. Virginia law sets out requirements for the use of property which can yield the title to the adverse possessor. The use must be continuous and actual.
"Continuous" possession means the use of the land must not be open to disruption or interruption by the title owner. We observed this necessity in an earlier post, A Master Class on the Continuous Possession Requirement of Adverse Possession. On the other hand, "actual" possession means the nature of the use must sufficiently evidence to the world-at-large who is in possession of the land, and that the person in possession of the land is in actual possession of the land occupying it.
Actual possession requires more than a paper title or claim of entitlement. It is insufficient that the adverse possessor merely do things that are customary to the ownership or use of land, such as going upon it from time to time for the purpose of inspecting it. Generally, there must be an exercise of dominion over, or the seizure of the property. What are some illustrative examples of "actual" possession? Courts have held that the following activities would qualify as actual possession of real property:
The question of who is in possession will often determine the outcome. Thus, actions taken pursuant to a lease will generally not suffice. Ferrell v. Carwile, 260 Va. 247 (2000). So too, acts of mere licensees cannot possibly result in title. Bageant v. Blanchard, 275 Va. 488 (2008).
Exclusions and Limitations
Despite any general ability of Virginia residents to claim land by adverse possession, there are some notable exceptions and limitations. Constitutionally Protected Property: Title to property owned by the federal government cannot be acquired by adverse possession. See 28 U.S.C. ยง 2410. Even state-owned property may be protected. The Supreme Court of Virginia has held that the Commonwealth cannot acquire title to property by adverse possession. Perkins v. Decker, 42 Va. 592, 596-97 (Va. 1845). References to state law granting the power of eminent domain have been read to incorporate the right to take otherwise privately owned property by adverse possession as well. See Buchanan v. Williams, 140 Va. 590, 591-92 (Va. 1926) (incorporating the 20 year period from section 19-13 of the prior code into the statute granting the Commonwealth the power of eminent domain) (overruled on other grounds). Statutory Period: Even if the property is not constitutionally protected, the adverse possessor must still meet all of the required elements of the claim. And, of course, the public policy behind the adverse possession doctrine requires that the claimant have occupied the property under a claim of right adverse to the true owner for over 15 years.
Relevant Case Law and Previous Precedents
Virginia has a long history of adverse possession case law. Many cases were heard prior to the 19th century.
In 1698, the Supreme Court of Virginia commented on the minimum time for adverse possession. The court held that Enclosures, continuous possession, and exclusion of the owner for 21 years met the statutory requirement for possession of land of another. Thomas Ballinger v. William Clayborne, 2 VA (2 Wash.) 356, 357 (1794).
In 1817, the Virginia Supreme Court reversed a summary judgment based upon less than the statutory requirements for possession. There must be continuous and uninterrupted use, but no testimony was presented regarding the length of time for possession or that the property was held for a certain number of years. The Supreme Court held in Morecock’s adm’r v. Chiswell’s heirs, 16 VA (2 Munf.) 473 (1817).
In 1832, the Supreme Court of Virginia reversed a ruling granting title to property based upon adverse possession. Defendant claimed all rights to lots that were vacant and with four to five foot weeds covering them. The court determined that McCausland had not taken possession of the property, but simply refused to leave the property. This was possession by the plaintiff because it has erecting buildings and other structures. Heaton v. McCausland, 18 VA (4 Munf.) 133 (1832).
Possession that met the statutory requirement was shown in Heath v. Broadnax, 23 VA (2 Rand.) 134, 135 (1824). Erecting his dwelling house within the year and maintaining his dwelling with repairs was sufficient.
In 1872 the Virginia Supreme Court extended adverse possession to unsealed, uncultivated and abandoned land. A building on the property or improvements to the property were not required. Miller v. Menzies and another , 32 VA (1 Leigh) 321, 323 (1830) – affirmed, again, in 1826. Adverse possession did not apply if the owner had no knowledge of an encroachment or the owner could not have known of it. Hall v. Tazewell’s Devisees, 20 VA (6 Munf.) 287, 288 (1817).
In 1981 the Virginia Supreme Court barred oral testimony to establish adverse possession. There was a requirement of evidence that the property had been used for a definite period, but the evidence was presented only through oral testimony. Jones et al. v. Parker, 213 Va. 639, 642 (1982).
Woods v. Rowland established that the bar of the statute of limitations is a privilege that may be claimed or denied to all less than the entity or person protected by the statute. It may be claimed for the benefit of the owner or property right, but not for the protection of the public. If in any instance, the defendant is entitled to the protection of the statute, he may use it as a defense, but the right to the protection of the statute is never bestowed on anyone, except the persons or entities specified in the statute or those for whose benefit it was enacted. 223 Va. 276, 277 (1982).
In 1996, adverse possession legislation was passed providing relief from the provisions of the statute of limitations which require a plaintiff to bring suit to recover. It provides that a person who has occupied land openly and notoriously for a specified period of time shall have a cause of action against the record owner to obtain judgment to quiet title to the property. The judgment shall confirm title in the possessor and shall extinguish all other interests and claims to said property. Historically, this has been a great relief for squatters.
The Virginia courts appear to have more recent restrictions than in the past.
Legal Proceedings Involved with Adverse Possession
For a claim of adverse possession to be successful, it does not only require proof of the factors outlined above but also a showing of exclusivity, continuous non-permissive possession for a period of time required by statute, and an entry that is open and notorious. These present multiple opportunities for a landowner to defeat the claim of adverse possession.
First, if the landowner can show permission or a consensual use or enjoyment of the land by the adverse possessor, then the claim will fail. The crux of an adverse possession claim is that the use or enjoyment of the land (the encroachment) be without the landowner’s permission and give rise to a claim against the adverse possessor for trespass. Today, such issues arise mostly in the context of disputes where the parties can agree that the encroaching structure was initially built or erected with permission, in which case the question is whether the original permission granted has expired or been revoked, or where property boundaries have been established by agreement but disputed in the adverse possession claim. It can also arise in a boundary line dispute where showing that the use or enjoyment of the land is actually permissive is burden-shifting, i.e., once the adverse possessor has shown use or enjoyment for the statutory period, the burden shifts to the landowner to show that the use or enjoyment was permissive during that time.
In fact, in a case that came before the Virginia Supreme Court earlier this year, the Court determined that an enclosure that was insufficient to establish a possessory claim is also insufficient to shift the burden to the landowner to prove that permission existed. In Davis v. Love the landowners built a fence that enclosed 10 acres of their land, but including in the fence an additional acre of their neighbor’s land. While the various possession factors were met, because the landowners had enclosed a portion of their neighbor’s land, the Court found that they could not have enclosed the land sufficiently to establish a possessory claim to it as their own. Without having established actual or constructive possession, the landowners could not "do away with the requirement that proves their exclusive possession… . If the actual and constructive evidence failed to prove their exclusive possession, the enclosement [of the adjoining owner’s land] could not improve their possession; in fact, it could only detract from their possession." In other words, the size of the present possession is immaterial; possession of the land is interrupted when it cannot be possessed properly and adversely.
Next, the adverse possessor must also show that the encroachment took place during the statute’s 15-year statutory period for adverse possession. If the landowner can show that the encroachment began less than 15 years before the adverse possession claim was made, then the adverse possessor must show that it meets the requirements for a claim under Section 8.01-229. It is not enough for a plaintiff to merely show that a portion of the land has been possessed for the statutory period, but instead must also show that the legal owner’s right of entry has been suspended for that period. Whether such a suspension has occurred is a highly fact-based assessment. And unless the adverse possessor can meet that burden, he or she cannot maintain a cause of action for trespass.
Finally, a claim of adverse possession cannot be maintained so long as an action would be pending to litigate the issue in the courts.
These are not the only hurdles an adverse possessor could find in his or her way. Certainly, other issues may come up during litigation, such as whether the possession was open and notorious, or exclusive, or continuous. Or, whether the presumption of grant could be established. But so long as a party can show that the claim can pass muster in light of these factors, then even if another property owner attempts to defeat the claim, the one asserting the claim has support from the law to make the necessary argument.
Distinction: Adverse Possession vs. Prescriptive Easements
In Virginia, when a party claims to have gained title to land or any interest under the theory of adverse possession, it is not uncommon to see a concurrent claim for "prescriptive easement." When reviewing the two claims in the abstract, there is little differentiating the two. Both, at their core, are competing claims for rights over the same piece of real estate. But the key difference in the Virginia context can mean an enormous difference in the resolution of a property dispute.
The distinction between the two stems from the nature and extent of the use of the disputed property. "Prescriptive rights" is a species of easement. It simply means the right to possess, use, enjoy, and/or burden another’s property (and the corollary displeasure) that arises from the use of that property. In order to establish a prescriptive easement in Virginia, "a party must show only that it acquired a right to continuously use a portion of another’s parcel under a claim of right adverse to the true owner without his consent and uninterrupted for a specified period of time."
"Adverse possession," on the other hand, describes a claim of right over a piece of real property for the purpose of claiming ownership as if the user was the owner all along. The differences in outcome between the two claims is easy to frame:
"[u]nlike a prescriptive easement, which presumes a continuing, present, nonexclusive use by one who may not be the true owner of the land, an adverse possessor enters adversely to the true owner and actually occupies the land as if he were the owner at the time."
This is not merely an academic discussion of the two concepts. The distinction has practical benefits. Adverse possession is only available to "hostile" use of the property, containing a brick wall in its definition. For example, the adverse possession standard requires a claimant to oust authority from the property, even if only symbolically (not with an actual ousting/eviction). On the other hand, discretionably prescriptive easement requires only that the claimed use of the land be without the owner’s permission. Other differences, such as the applicable statute of limitation for each claim is another practical difference. For prescriptive easement claims, the legal deadline to make a claim is 15 years. For adverse possession claim, the statute of limitation is 15 years for most non-possession claims, but 20 years for claims based on deeding errors.
Counsel and Legal Guidance
Pursuing an adverse possession claim in Virginia can be a complex and contentious process, and it is highly advised to seek legal assistance when considering or pursuing one of these claims. A qualified attorney will be able to help you understand your legal rights and responsibilities, navigate the complicated legal procedures involved in pursuing a claim, and represent you in court if necessary.
While self-representation is always an option in Virginia, it is not recommended. Even if you are ultimately successful, the process of proving your claim will involve intensive research, information gathering and paperwork. You will need to demonstrate whether or not you meet the ten-year occupancy requirement , and if you don’t have clear evidence of this, you will need to search for proof, such as survey maps, tax records and other documentation, to bolster your case. Adverse possession claims are often complicated by boundary disputes, easements and other encroachments on usage. A qualified Virginia litigation attorney will help you to present a compelling case on your behalf.
Even if you are not planning on actively pursuing an adverse possession claim, it is smart to work with a qualified real estate attorney to avoid inadvertently losing your property through another party’s adverse possession claim. At the first sign that a party is attempting to use adverse possession against you, seek the counsel of an attorney to help you protect your rights.