Adverse Possession is a current and longstanding doctrine of North Carolina Law that allows a person to acquire ownership of another person’s real estate through continuous long-term use and possession of the property. Basically Adverse Possession is the equivalent of “squatter’s rights.” The doctrine essentially allows people to take title and ownership of real property with no exchange of title documents, no closing, no deed conveyance and no deed recording. Of course it’s easier said than done. The person claiming ownership through Adverse Possession must prove title to the disputed property through proof of their uninterrupted possession of the real property for a certain period of years (this requirement differs depending on the circumstances as discussed below). The following information is a general outline of how the Adverse Possession Doctrine operates in North Carolina. While Adverse Possession may seem like a rare issue, it may arise in situations involving boundary disputes and tenant holdovers. Please be advised that attempts to acquire real estate through Adverse Possession could potentially result in Criminal and Civil Liability for Trespassing. This blog is not to be construed as legal advice.
To prove adverse possession, claimants must show “actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period (seven years or twenty years) under known and visible lines and boundaries. Merrick v. Peterson, 143 N.C. App. 656, 663, 548 S.E. 2d 171, 176 disc. rev. denied, 354 N.C. 364, 556 S.E. 2d 572 (2001).
One claiming to have acquired real estate by Adverse Possession must possess, use and control the disputed property as if the claimant were the actual owner of the property. This can be proven through circumstantial evidence to demonstrate that the claimant actually used and possessed the property, as a true owner would have used the property, without concealing their use of the property. Additionally, the claimant must prove that their use was for a continuous period of time (the applicable prescriptive period described below). Finally, claimants must prove Adverse possession in Court by the Civil Litigation Preponderance of the Evidence standard. Be aware that evidence used to prove actual, open and continuous possession of the property will vary depending on the type of property claimed (residential or commercial property). Some examples of acts that can be used to demonstrate actual, open and continuous use and possession could be residing on the property (for residential property), regularly cutting timber on the property (for commercial property), and constructing a fence along a boundary of the claimed property (for residential and commercial). The basic premise is that a claimant must prove more than a mere intent to own the property or tell others that the claimant owns the property.
Hostile in this context does not mean unfriendly, antagonistic, or intimidating, as you might expect from Cleetus in overalls wielding a 12-Gauge shotgun and screaming “Git off my lawn!” at you. Hostile, in the Adverse Possession context requires the claimant to use the property without the owner’s permission. The Hostile element also requires that the claimant not conceal their use of the property and that the claimant uses the property in a manner that makes it apparent that the claimant is claiming ownership of the property. To prove Exclusive Use, the claimant must have excluded anyone else from claiming a right of ownership of the property, including the property owner.
Generally, an Adverse Possession claimant cannot successfully acquire title to real property until they have maintained actual, open, continuous, hostile and exclusive use of the property for at least 20 consecutive years (uninterrupted) as an owner of that type of property would have used the property. For example, use varies depending on whether the property is Residential or Commercial.
When an Adverse Possession claimant can prove that they relied on an incorrect deed in maintaining actual possession of the property (under a belief of ownership), also known as Color of Title, the Adverse Possession claimant must have maintained actual, open, continuous, hostile and exclusive use of the property for at least 7 consecutive years (uninterrupted) as an owner of that type of property would have used the property. The Adverse Possession claimant must have a deed that includes the disputed property and the boundaries that the Claimant believed to have ownership of.
Tacking generally refers to what occurs when one Adverse Possession claimant conveys property that the grantor maintained actual, open, continuous, hostile and exclusive use of for a period that is less than the applicable prescriptive time period without actual ownership. For example, in this scenario a grantor conveyed a property that she maintained actual, open, continuous, hostile and exclusive use of for 3 years under Color of Title. The grantee can then acquire title to the property through Adverse Possession if he maintained actual, open, continuous, hostile and exclusive use of the property for 4 years under Color of Title, if he believed that he was the lawful owner of the property through the conveyance of the invalid deed from the grantor. Whether tacking can be utilized depends on several factors including the relationship between the parties and whether a grantor maintained actual, open, continuous, hostile and exclusive use before conveying a property to a grantee that must maintain actual, open, continuous, hostile and exclusive use of the property as the prior claimant.
We strongly encourage you to seek the advice of a licensed North Carolina Real Estate Attorney before you decide whether you have an Adverse Possession claim to Real Estate. To schedule a consultation today, contact Biazzo & Panchenko Law, PLLC. This blog is not to be construed as legal advice.