Establishing Property Ownership by Possession

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Most people come to own real estate the old fashion way: They buy the property from the owner. In exchange, they usually receive a deed conveying title to the property. But, a conveyance is not the only way to acquire real property. People also come to own real property by possessing the property for a long period of time. This article will discuss the ways a person in Minnesota might become the owner of real property by possessing it.

Adverse Possession

Adverse possession is a claim to ownership of property that, at least as a matter of record, belongs to someone else. The claim seeks to divest the record owner of title, and to vest title in the party who actually possesses and uses the property. The doctrine reflects a policy of disfavor toward the neglect of real property. Dean v. Goddard, 56 N.W. 1060, 1062 (Minn. 1893) (“Considerations of public policy demand that our lands should not remain for long periods of time unused, unimproved, and unproductive.”).

Adverse possession cases typically arise when one neighbor gets a survey, and learns that their actual boundary is not where they thought it was located. The party asserting adverse possession must show by clear and convincing evidence actual, open, exclusive, hostile, and continuous possession during the statutory period. Stanard v. Urban, 453 N.W.2d 733, 735 (Minn. Ct. App. 1990); Minn. Stat. § 541.02.

Proving Adverse Possession

Each element of an adverse possession claim (actual, open, hostile, etc.) requires a specific type of proof.

For instance, to prove “actual possession,” a person must be able to show that they made visible and physical use of the property, and used the property in a way that indicated an intent to permanently own it. Court decisions make clear that temporary, occasional, or sporadic use of property is not enough. One Minnesota court held that, while seasonal use of lakeshore property and storage of equipment was insufficient, the construction of a storage shed could give rise to an adverse possession claim. Stanard, 453 N.W.2d at 735. Another court held that mowing and clearing the land a few times a year is insufficient to establish adverse possession. Nash v. Mahan, 377 N.W.2d 56, 58 (Minn. Ct. App. 1985). It is not necessary, however, that the person claiming adverse possession construct physical structures or actually live on the land. See Ganje v. Schuler, 659 N.W.2d 261, 267 (Minn. Ct. App. 2003).

To prove that possession is “open,” a person must be able to show that their use of the property was sufficiently visible to put the actual owner on notice. “Visible” in this context means that the record owner could have seen the adverse use if they had intended to protect their property rights. There is no requirement that the record owner have actually seen the adverse use. Hickerson v. Bender, 500 N.W.2d 169, 171 (Minn. Ct. App. 1993).

The exclusivity requirement is met when the claimant takes “possession of the land as if it were his own with the intention of using it to the exclusion of others.” Ganje, 659 N.W.2d at 267. (exclusivity not met on portion of wooded area where both families “took advantage of the opportunity provided by the area”).

Most importantly, a possessor must be able to show that they held the property continuously for the statutory period of time. In Minnesota, the period is 15 years. Minn. Stat. § 541.02. Once the statutory period has passed, title vests fully in the adverse possessor, and continued possession thereafter is not necessary to maintain title.  See Fredricksen v. Henke, 209 N.W. 257, 259 (Minn. 1926).

Defending Against Adverse Possession Claims

There are several ways to defend one’s property against a claim of adverse possession.

One way is to give someone permission to use your property. You cannot take land from someone who gives it to you. Common sense, right? So, you cannot adversely possess land that you are using with permission. See Lechner v. Adelman, 369 N.W.2d 331, 333 (Minn. Ct. App. 1985). However, the granting of permission is effective only if the possessor accepts the permission. Oftentimes, a person is possession will say, “I don’t need your permission.” In this case, the granting of permission will not effectively resolve an adverse possession claim.

Another way to avoid an adverse possession claim is to ask the possessor to acknowledge your title to the property. A claimant defeats his own adverse possession claim by acknowledging the ownership of his neighbor. See Olson v. Burk, 103 N.W. 335, 336 (Minn. 1905); Stanard, 453 N.W.at 736 (15 year period broken by offer to purchase contested property). The acknowledgment of title should be in writing and signed by the possessor. This would essentially be an agreement by the possessor that he doesn’t claim any ownership of your property. Alternatively, a possessor could sign a quit claim deed, effectively eliminating any claim that he has to your property.

If the possessor is unwilling to accept permission or to otherwise relinquish title to your property, then you may have no choice but to start a lawsuit to resolve the issue. Its important that the lawsuit be commenced as soon as possible, but certainly before the end of the 15-year statutory period.

This article is for informational purposes only, and does not constitute legal advice.