The law of adverse possession is one of the most fascinating subtopics within the broader field of real estate law: we find clients are consistently surprised that the law enables a person to acquire ownership of land (a) that is not his or hers to begin with and (b) without ever paying the prior owner for the land.
When a person acquires land this way, the law refers to it as "adverse possession," and in January the Supreme Court of Virginia, in an opinion written by Chief Justice Hassell, re-visited and affirmed prior rulings dealing with the requirements for a valid claim of adverse possession.
In Helms v. Manspile (the complete ruling can be found here), the SCV reversed a decision by the Circuit Court for Botetourt County.
At the Circuit Court level, Thomas and Barbara Helms requested a declaratory judgment that they owned -- by virtue of adverse possession -- a parcel of land 102 feet long that was located at the boundary of properties owned by the Helms and their neighbors (the Manspiles).
The Helms had purchased their property in 1972 and had fenced-in the disputed parcel a number of years before the lawsuit.
The Circuit Court ruled against the Helms's, however the SCV reversed the Circuit Court's ruling and held that the Helms had acquired title to the disputed property by virtue of satisfying the six requirements for a claim of adverse possession in Virginia.
Those six requirements -- and the Supreme Court's holding in Helms v. Manspile -- are as follows:
(1) An individual claiming ownership by adverse possession must prove actual possession of the disputed property. In Helms, the Court stated that the Helms established their actual possession of the land by virtue of having (a) fenced-in the property, (b) mowed the grass there, and (c) maintained dog kennels on it.
(2) An individual claiming ownership by adverse possession must prove visible (or, to put it more colorfully, notorious) possession of the disputed property. The Court stated that the Helms established their visible possession of the land by virtue of having fenced-in the property (an editorial aside: there tends to be overlap in the evidentiary analysis in adverse possession cases, and perhaps someday a court will streamline the six requirements to two or three -- the rejoinder to this suggestion is that the juiciest (and most contentious!) AP cases tend to include specific details about each of the requirements).
(3) An individual claiming ownership by adverse possession must prove exclusive possession of the disputed property. In Helms, the Court stated that the Helms established their exclusive possession of the land by virtue of Mr. Helms having built a 'skid road' across the parcel -- an act which the Manspiles neglected to object to because they did not think they had a right to object.
(4) An individual claiming ownership by adverse possession must prove hostile possession of the disputed property. The Court stated that the Helms demonstrated the requisite hositility by virtue of having built the aforementioned fence.
(5) An individual claiming ownership by adverse possession must prove that he or she asserted a "claim of right" to use of the property. The Court stated that the earlier-described "use and conduct" of the Helms satisfied the requirement of a "claim of right" (again, the absence of additional details from the Court indicates that a streamlined test for adverse possesion may be advisable).
(6) An individual claiming ownership by adverse possession must prove that he or she satisfied all of the other requirements continuously for a period of at least 15 years. In Helms, the Court found that the Helms's had satisfied the requirements almost since they time they purchased the adjoining property, in 1972.
The 15-year requirement (which is based in statute) is critical, and there is interesting (and, if a landowner believes he or she may have a claim, important) Virginia case law about the ability (or not) of successive claimants/owners to "tack" onto the adverse actions of their predecessors in order to satisfy the time requirement.
So what is the lesson of Helms for landowners? If you are uncertain about a neighbor or other landowner possibly acquire ownership of land by virtue of adverse possession (or, alternately, if you are the potential AP-acquirer), talk to an attorney about your rights and potential courses of action.
