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If someone follows the following procedures, they may acquire a property through adverse possession. This article will discuss:

  • What is adverse possession?
  • What is the hostile requirement in adverse possession?
  • What is the actual requirement in adverse possession?
  • What is the open requirement in adverse possession?
  • What is the exclusive requirement in adverse possession?
  • What is the continuous possession requirement in adverse possession?
  • What is the claim of right requirement?
  • What is color of title?

Most property rights are acquired as part of a transaction as part of a buyer and a seller, with a clear, written description of that property interest.  However, there are times when someone may acquire a property interest in land when there has been no formal transaction. If someone follows the following procedures, they may acquire a property through adverse possession. This article will discuss:

  • What is adverse possession?
  • What is the hostile requirement in adverse possession?
  • What is the actual requirement in adverse possession?
  • What is the open requirement in adverse possession?
  • What is the exclusive requirement in adverse possession?
  • What is the continuous possession requirement in adverse possession?
  • What is the claim of right requirement?
  • What is color of title?

What is adverse possession?

While the concept of a trespasser gaining ownership of another’s property may sound strange, Iowa, and many other states, allow this practice to continue. However, a trespasser can only take ownership of another’s land under very limited circumstances.  For someone to claim they have title to property by adverse possession, ten years must pass from the date of the original possession.  

Often, the person who wants to claim ownership of the property is a neighbor, who may have made improvements or taken care of the land without actual knowledge they were on another’s land. For instance, if a landowner builds a fence a few feet into a neighbor’s property, if enough time passes, the fence-builder may assert a claim to that additional property under the doctrine of adverse possession.  

In Iowa, someone must establish several elements to claim title of a property by adverse possession. A person establishing title by adverse possession must establish a:

  • Hostile,
  • Actual,
  • Open,
  • Exclusive,
  • And continuous possession,
  • Under a claim of right or color of title,
  • For at least ten years,
  • By clear and positive proof.  

These terms will be explained in further detail. Iowa Courts have also generally held that there is also an implicit requirement of good faith. Good faith generally requires a person to act honestly, as in they honestly believed they had a right to the property in question. However, because of some confusion or mistake, they used the land any way.  

Adverse possession is not favored by Iowa Courts. Iowa courts prefer property transactions to be clear and specific, and evidenced in writing. However, the law has developed to protect people who reasonably believed they were the true owner of the property. The courts will then look to whether the person possessing and using the land is openly using the property in a way a true owner of the land would normally use it. While we will go through the individual elements, the question always comes back to: “Was the person asserting claim of right through adverse possession using the land like a normal owner of the land would be using?” If the answer is yes, and the necessary ten years have passed, the person may have a claim under the doctrine of adverse possession.  

What is the hostile requirement of adverse possession?

The hostile requirement is met when the party asserting a claim through adverse possession shows, through how they act, they intend to hold title of the property against anyone else in the world, including the true title holder. In other words, their possession of the property is against the rights of the true title holder. If a title holder gives permission to the trespasser to use the property, the hostility element is not met. This is a reason a tenant living in a building and paying rent for over ten years cannot try to assert a claim over the property through adverse possession.  

What is the actual requirement of adverse possession?

Actual possession of property is the kind of possession or control the owners of the kind of property normally have. A person with actual control will manage and care for the property like that of another owner of similar property. Under some circumstances, a previous person possessing property can grant their interest in the property to a new owner of property, thus helping the new owner reach the ten years requirement.  

What is the open requirement of adverse possession?

The open requirement means the possessor must use the property openly, without hiding their possession, in the same way owners of this kind of property generally would. If a person is somehow being secretive of their use of the property, this element would not be met.  

What is the exclusive requirement of adverse possession?

The exclusive requirement means that the person on the property is the only one possessing it during the ten years. However, this requirement is not defeated simply because other people are on the land from time to time. The possession of the land must be like how the actual owner would use it. Having grandchildren come and stay with the grandparent for certain periods, therefore, does not defeat the exclusivity requirement. However, the requirement could be defeated if people are free to come and go from the property as the please, without the possessor excluding people from it.  

What is the continuous requirement of adverse possession?

A person must possess the property continuously for ten years. However, this does not mean they have to be there constantly. They must be there as long as a normal owner of the property would be there. Vacations and other like absences will probably not defeat the continuous requirement.  

What is the claim of right requirement?

The claim of right requirement means that a person has an actual claim to the property which warrants taking it under adverse possession. The claim of right requirement is met if the possessor occupied the property, used the property, or improved the property (such as by building structures or altering it), as if they were the actual owner of the property. If they treat the property as their own, without paying rent, acknowledging that someone else has title of the property, or admitting they do not have title in the property, there is a presumption of their holding as the true owner. This establishes the claim of right element.  

What is color of title?

Color of title is an apparent, but invalid title based upon a written record, or an apparent ownership interest. This is an alternative to the claim of right requirement under the doctrine of adverse possession

Posted 
March 17, 2021
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