Doctrine of adverse possession
Adverse possession is a legal doctrine that allows a person to claim a property right in land owned by another. Common examples of adverse possession include continuous use of a private road or driveway, or agricultural development of an unused parcel of land. By favoring the adverse possessor over the true landowner, the doctrine of adverse possession rewards the productive use of land and punishes landowners who “sleep on their rights.
Adverse possession can also be defined as a doctrine under which a person in possession of land or property owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.
Adverse possession is known colloquially as “squatters’ rights”. This tends to conjure an image of trespassers in a building and a delay of days or weeks before they can be evicted while the legal process is completed. Adverse possession describes the rights to own a piece of land that can be acquired after the passage of 10 years or more.
Claim by adverse possession has two elements:
(1) The possession of the defendant should become adverse to the plaintiff;
(2)The defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession.
Adverse Possession
Common Law Requirements
The common law requirements have evolved over time and they vary between jurisdictions. Typically, for an adverse possessor to obtain title, his possession of the property must be:
Continuous; A single adverse possessor must maintain continuous possession of the property. However, the continuity may be maintained between successive adverse possessors if there is privity between them.
Hostile; In this context, hostile does not mean “unfriendly.” Rather, it means that the possession infringes on the rights of the true owner. If the true owner consents or gives license to the adverse possessor’s use of the property, possession is not hostile and it is not really adverse possession. Renters cannot be adverse possessors of the rented property, regardless of how long they possess it.
Open and Notorious–Possession must be obvious to anyone who bothers to look, so as to put the true owner on notice that a trespasser is in possession. One will not succeed with an adverse possession claim if it is secret.
Actual; The adverse possessor is actually in possession of someone else’s property. The true owner has a cause of action for trespass, which must be pursued within the statute of limitations.
Exclusive; The adverse possessor does not share control of the property with any one else (unless in privity with himself). He excludes others from possession, as if he was actual owner.
Statute of Limitations
Effect of Adverse Possession
While adverse possession alone does not result in a transfer of legal title, adverse possession gives a person a vested property right in the area possessed. Once a person meets the statutory requirements for adverse possession, he or she may initiate a quiet title action and obtain legal title to the property.
Requirements
The requirements for adverse possession are governed by state statute and may vary significantly between jurisdictions. A typical adverse possession statute requires that the following elements be met:
Open and Notorious. The person seeking adverse possession must occupy a parcel of land in a manner that is open and obvious. The person may not occupy the land secretively or make efforts to remain undetected. A landowner is not required, however, to have actual knowledge of the occupation.
Exclusive. The land must be occupied exclusively by the person seeking adverse possession and may not be shared with the public or the true owner.
Hostile. The occupation must be hostile and adverse to the interests of the true owner. If a landowner has given a person permission to use the property, the possession is not considered hostile. However, a landowner is not required to have actual knowledge of the occupation, so long as the occupation is adverse to the owner’s property interests. For example, a landowner may be unaware that his neighbor’s fence extends several feet over his property line. The occupation is sufficiently hostile, however, because the landowner has not given his neighbor permission to encroach upon his property in this manner.
Statutory Period. Possession of the land must continue for the state’s predetermined statutory period. The statutory period for adverse possession may be as short as three years or as long as twenty years. Many jurisdictions allow an adverse possessor to “tack on” his or her period of adverse possession to a previous possessor’s period, so long as there is no lapse in time between the two occupations. A statutory period will not begin running if a landowner is an infant (below the age of majority), if the landowner is deemed insane, or if the landowner is incarcerated. If the landowner suffers from one of the above conditions during the statutory period, the statutory period will not be tolled and may continue uninterrupted.
Continuous and Uninterrupted. All elements of adverse possession must be met at all times during the statutory period. However, an adverse possessor is entitled to use the property in a manner consistent with the type of property being possessed. For example, use of a ski lodge may be continuous even if it is only used during the winter months.
Limits on Adverse Possession
Adverse possession is not available in all situations. For example, title to government-owned land may not be obtained by adverse possession.
Significance of adverse possession on the property of Indians left behind in Uganda
The law of adverse possession gives the the right of possession but not ownership to the people who own the property like fot the case of the property of the departed Asians in Uganda.
Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. On the other hand, a possession to be adverse, the possession not by the true owner, but by a person who objects or denies the right of the true owner and his title over the property. Again, only ‘possession’ cannot constitute the claim of adverse possession.Possession may or may not arise out of settled right, but a person claiming adverse possession has no right their upon. It is to be noted that mere user cannot assert such proprietary rights, as also laid down in Framji Cursetji v. Goculdas Madhoji. The person who contends that he is in adverse possession should admit the ownership of the true owner. Thereafter, he should prove that he has become owner by virtue of adverse possession. Thus, the burden of proof lies on the one who asserts.
The property of the owner is protected by law and the right of the owner is observed ; In order that adverse possession ripen into legal title, no permissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the uses to which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by a preponderance of the evidence.
The property is also kept in use before the true owners of the property regains the full ownership of the property Back. Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise.
An adverse possessor must possess land openly for the entire world to see, as a true owner would. Secretly occupying another’s land does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant’s possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.
Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.
An adverse claimant cannot possess the property jointly with the owner. Two people may, however, claim title by adverse possession as joint tenants if they share occupancy of the land. When others or the general public have regularly used or occupied the land with the adverse claimant, the requirement of exclusive possession is not satisfied. Casual use of the property by others is not, however, inconsistent with exclusive possession.
In one of the legal cases that is in relation to adverse possession it was in the case of HOPE RWAGUMA, the Administrator of the Estate of the late Rwaguma B.E (hereinafter referred to as the “plaintiff”) brought this action against JINGO LIVINGSTONE MUKASA, the Administrator of the Estate of the Late Yowana Mukasa (hereinafter referred to as the “defendant”). She is seeking, inter alia, for declaration that by virtue of possession which she derives from previous occupants dating as far as 1959 without disturbance or adverse claim by any person, she acquired title by possession. She also seeks for an order directing the Commissioner Land Registration to cancel the certificate of title for land comprised Plot 31 Block 543 Busiro measuring 49.40 acres, (hereinafter referred to as the “suit land”) registered in the name of the defendant. In the alternative to the aforesaid, the plaintiff seeks for a declaration that she a bona fide occupant on suit land, general damages, and costs of the suit.
The defendant filed a counterclaim also claiming rights over the same land as the lawful owner having been registered thereon by virtue of the grant of letters of administration for the estate of his late father Yowana Mukasa, who was previously the owner having been registered on 11/08/1960. The defendant sought, inter alia, for an order of a permanent injunction restraining the plaintiff from trespassing or interfering his occupation and or possession of the suit land, and an order that the plaintiff be evicted from the suit land. Therefore adverse possession enables those who legally lack property to be able to survive from the property which is not theirs.
