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The Strange Doctrine of Adverse Possession and Its Origins

By Joseph G. Ballstaedt

The doctrine of adverse possession of real property is a strange legal concept, yet one deeply imbedded in American law. Under this doctrine, a person who trespasses onto and possesses the property of another can, after enough time has passed and if certain other conditions are met, become the legal owner of the property. This doctrine arguably condones trespassing by rewarding “squatters” for conduct that seems unfair, unjust and contrary to long-held principles of private property ownership. However, the requirements to actually prove adverse possession are stringent enough that the doctrine is infrequently applied. It is typically used to resolve ownership disputes in favor of the person who has actually occupied, cared for, and paid taxes on the property.

Each state has specific requirements enumerated in court decisions and statutes that must be met to acquire land through adverse possession. In Idaho, a person claiming ownership by adverse possession first must prove he or she has possessed the property for the statutory period. Up until 2006 this period was five years in Idaho. The Idaho Legislature amended the statute in 2006 to extend the period to 20 years. The person must also prove his or her possession was “actual, open, visible, notorious, continuous, and hostile” to the owner of record, and that he or she has enclosed, improved, and paid taxes on the disputed property. If these elements are proven by clear and convincing evidence, the claim of adverse possession succeeds and the judge will issue a judgment declaring the person to be the legal owner of the property.

Where did this doctrine come from? Even historians recognize that the origins of adverse possession are surrounded by a “historical fog.” Perhaps the earliest recognition of this doctrine dates back to about 2000 B.C. in the Code of Hammurabi, which explained that if a man left his house, garden, or field and another person possessed and used it for three years, the newcomer retained the land. Ancient Romans believed a person who possessed land nurtured the spirit of the land and gained a greater “ownership” in the land than the title owner.

Of course, much of American law has its roots in English law, and the doctrine of adverse possession is no exemption. In early England, the king generally owned all the land, but when disputes between private individual began to arise, land records were often poor and literacy was rare, so actual possession of land was often the best evidence of ownership. Thus, the doctrine of adverse possession served to clear title to real property. In 1639, the statute of limitations for these types of suits in England was 20 years, mirroring the current Idaho statute of limitations.

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