What is unwanted possession?
Harmful possession is a legal doctrine that allows a person who owns or resides on someone else’s land for an extended period to claim title to that land. If he succeeds in proving adverse possession, the plaintiff is not required to pay the owner of the land.
Adverse possession is sometimes called the right to squatter, although squatter rights are a familiar reference to the idea rather than a registered law.
Key points to remember
- Adverse possession is the legal process by which an occupant who does not own land is able to obtain title and ownership of that land after a certain period of time.
- The applicant for the land, the disseissor, must demonstrate that several criteria have been met before the court accepts his request.
- Also known as squatters or homesteading rights, the law can also be applied to other properties such as intellectual or digital / virtual property.
Understanding unwanted possession
Unwanted possession and the requirements to prove it can vary considerably from one jurisdiction to another. In many states, proof of payment of property and deed taxes is essentially required for the plaintiff to be successful. Each state has a period of time during which the registered landowner can invalidate the claim at any time. For example, if the state threshold is 20 years old and the owner paints or pays for other maintenance on the house in question in the 19th year, then the plaintiff will have a hard time proving possession unfavorable. That said, landowners are advised to eliminate the possibility of adverse possession as soon as possible by signing agreements for any use of a property.
To successfully claim land that is in adverse possession, the claimant – also called the assignee – must generally demonstrate that their occupation of the land meets the following requirements:
- Continuous: the disseissor is in permanent possession of the property in question.
- Hostile: the disseissor uses the property without an existing agreement or license from the owner as with a written easement or rental agreement.
- Open and notorious: possession of the property by the assignee is obvious to anyone who observes it.
- Actual: the disseissor is actively in possession of the property, including its maintenance and (according to state law) paying tax.
- Exclusive: the disseissor uses the property and excludes others from using it as well.
Unfavorable possession and family property
Unwanted possession is similar to family property in practice. On family properties, land that has no official owner or that belongs to the government is granted to new owners on the condition that they use and improve it. If a head of household does not use the land, he can lose it. Adverse possession can work similarly by freeing up land whose title is unclear for productive use. Of course, opposing possession can also be abused in the same way as family property. If there is an informal easement between two farms where a farmer’s fence has an acre of neighboring land, for example, the farmer using it can claim adverse possession to essentially bite that piece of land. there is no written easement agreement.
Adverse possession and intellectual property
Unwanted possession has been proposed as a possible solution to discourage the abuse of intellectual property rights such as cybersquatting, excessive copyrights and patent trolls. Applying adverse possession to intellectual property as well as physical property would force attackers to devote more resources to the active use of their portfolio of brands, patents, etc., rather than simply sitting on it and waiting for real innovators operate on their territory.