Topic:
REAL PROPERTY; RIGHT-OF-WAY; EASEMENTS; LEGISLATION; REAL ESTATE; WATER COMPANIES; NON-PROFIT ORGANIZATIONS; MUNICIPALITIES;
Location:
PROPERTY;

OLR Research Report


January 19, 2006

 

2006-R-0032

ADVERSE POSSESSION

By: George Coppolo, Chief Attorney

You asked what is the current law regarding adverse possession, how has it changed during the past 10 years, and what the law is elsewhere.

SUMMARY

Connecticut law recognizes adverse possession as a way to acquire title to property. Adverse possession is a method of acquiring title to real estate, accomplished by an open, visible, and exclusive possession uninterruptedly for a 15-year period (CGS 52-575; Whitney v. Turmel 180 Conn. 147 (1980)). Connecticut also recognizes the right to acquire a right-of-way or other easement by continuous, uninterrupted use of someone else's land for 15 years (CGS 47-37).

The legislature has amended this law three times during the past 10 years- in 1996, 1999, and 2002.

Legislation passed in 1996 authorizes a landowner who wishes to interrupt an adverse possession claim, in addition to things already required, to serve a notice on the adverse possessor and record it on the land records (PA 96-249). Such service and notice is an interruption of the use and possession and prevents the acquisition of a right by continuing the use and possession thereafter.

Legislation adopted in 1999 protects land belonging to a nonprofit land-holding organization from adverse possession. The act applies to non-stock corporations whose principal purposes include the conservation and preservation of land (PA 99-64).

PA 02-66 prohibits adverse possession claims on certain types of land owned by investor-owned water companies.

The law in other states is similar to Connecticut's. The main difference is that some jurisdictions have established a shorter or longer period, and some have established different time periods for different types of property.

CONNECTICUT

Adverse possession can create an absolute title to real estate, which is as good as title by deed from the record owner. But adverse possession as record title requires evidence showing the existence of all elements necessary for adverse possession, and apparently this can be done only in a judicial proceeding to which those to be bound by the decision have been made parties.

The essential elements of an adverse possession sufficient to create title to land in a claimant are that the owner is ousted of possession and kept out uninterruptedly for 15 years by an open, visible, and exclusive possession by the claimant, under a claim of right, with the intention of using the property as his own, and without the owner's consent. The possession must be hostile and under a claim of right, actual, open, notorious, exclusive, continuous, and uninterrupted (Goodman v. Quadrato, 142 Conn. 398 (1954)).

The 15-year period comes from CGS 52-575 which establishes this time frame for an owner to assert his ownership claim over an adverse possessor.

A landowner who wishes to interrupt an adverse possession claim may serve a notice on the adverse possessor and record it on the land records. Such service and notice is an interruption of the use and possession and prevents the acquisition of a right by continuing the use and possession thereafter.

The notice must be served on the adverse possessor, his agent, or guardian if they are in Connecticut, in the same way lawsuit papers are served. Otherwise, a copy of the notice must be affixed to the house on the land in question or to some other conspicuous part of the premises.

The notice and papers indicating the notice was served must be recorded in the land records of the town where the land is located within three months after service. When the adverse possessor is unknown, the notice must be given by conspicuously posting a copy on the property, serving it on the person to whom the taxes were last assessed, and recording it on the land records.

The law prohibits adverse possession of:

1. certain types of land owned by investor-owned water companies (CGS 47-27(b));

2. land belonging to a non-profit corporation organized under Connecticut law with land conservation or preservation as one of its principal purposes (CGS 47-27(b)); and

3. certain railroad and canal land (CGS 47-26).

RIGHTS OF WAY OR OTHER EASEMENTS

No one may acquire a right-of-way or any other easement from, in, upon, or over someone else's land, by the adverse use or enjoyment of it, unless the use has been continued uninterrupted for 15 years (CGS 47-37). The use must be so open, visible, and apparent that it gives land owners the full opportunity to assert their own rights (Klein v. De Rosa, 137 Conn. 586 (1957)). The law presumes that after 15 years, the holder of legal title has acquiesced in the use (Aksomitas v. Sough End Reality Co., 136 Conn. 277 (1949)).

A landowner may give written notice to the person claiming or using the privilege of his intention to dispute the right-of-way or other easement and to prevent him from acquiring the rights. The service of the notice and recordation on the land records is deemed an interruption of the use and prevents the acquiring of the right-of-way or other easement by continuing the use thereafter (CGS 47-38). The notice must be served in the same manner as an original summons in a civil action on the person claiming or using the way or other easement or his agent or guardian if they are in Connecticut. If not, the notice must be served on the tenant or occupants of the interest to which the easement or right-of-way is attached, or a copy must be affixed to the house or the estate or some other conspicuous part of the premises (CGS 47-39). This notice is considered a disturbance of the right-of-way or other easement that allows the person claiming the right to go to court to settle the controversy. If he prevails, he is entitled to full costs even if he only recovers nominal damages (CGS 47-41).

RECENT LEGISLATIVE CHANGES

1996 Legislation

Legislation passed in 1996 requires a landowner who wishes to interrupt an adverse possession claim, in addition to things already required, to serve a notice on the adverse possessor and record it on the land records (PA 96-249). Such service and notice is an interruption of the use and possession and prevents the acquisition of a right by continuing the use and possession thereafter.

The act also requires the landowner to go on the land to assert his possessory interest, as did prior law. It also requires the landowner to bring an action in court within one year of recording the notice, instead of completing the action against the adverse possessor within one year after he goes on the land to assert his interest. The service and recording of the notice is an interruption of the use and possession and prevents continued use and possession thereafter from creating an adverse possessor right.

Under prior law, if a person was a minor, mentally incompetent, or in prison when his right or title to the land first occurred, either he or his heirs could go on the land to assert a possessory interest or bring such a court action within five years after his becoming an adult, mentally competent, or released from prison, even if the 15-year period had expired. The act instead, allows the person to go on the land and serve and record such notice at any time during this five-year period. It continues to allow his heirs to do so within five years of his death.

1999 Legislation

Legislation adopted in 1999 protects land belonging to a nonprofit land-holding organization from adverse possession. The act applies to non-stock corporations whose principal purposes include the conservation and preservation of land (PA 99-64).

2002 Legislation

Legislation adopted in 2002 prohibits adverse possession claims to Class I or Class II land owned by investor-owned water companies (PA 02-66). But it specifies that this prohibition does not affect any adverse possession right in or to land acquired before October 1, 2002.

“Water company” includes every person owning, leasing, maintaining, operating, managing, or controlling any pond, lake, reservoir, stream, well, or distributing plant or system employed to supply water to 50 or more consumers. A water company does not include homeowners; condominium associations providing water only to their members; homeowners associations providing water to customers at least 80% of whom are members of the associations; a municipal waterworks system; a district, metropolitan district, municipal district, or special services district authorized to supply water; or any other waterworks system owned, leased, maintained, operated, managed or controlled by any unit of local government under any general statute or any public or special act (CGS 16-1).

Class I land includes all land owned by a water company or acquired from a water company through foreclosure or other involuntary transfer of ownership or control that is either (1) within 250 feet of high water of a reservoir or 100 feet of all watercourses as defined in agency regulations; (2) within the areas along watercourses that are covered by any of the critical components of a stream belt; (3) land with slopes 15% or greater without significant interception by wetlands, swales, and natural depressions between the slopes and the watercourses; (4) within 200 feet of groundwater wells; (5) an identified direct recharge area or outcrop of an aquifer now in use or available for future use; or (6) an area with shallow depth to bedrock, 20 inches or less, or poorly drained or very poorly drained soils as defined by the U.S. Soil Conservation Service that are contiguous to land described under (3) or (4) and that extend to the top of the slope above the receiving watercourse (CGS 25-37c(a)).

Class II land includes all land owned by a water company or acquired from a water company through foreclosure or other involuntary transfer of ownership or control that is either (1) on a public drinking supply watershed that is not class I land or (2) completely off a public drinking supply watershed and within 150 feet of a distribution reservoir or a first-order stream tributary to a distribution reservoir (CGS 25-37c(b)).

OTHER STATES

The information in this portion of the report relating to the law in other states is taken directly from a publication entitled American Jurisprudence Second (Am. Jur. 2d). It provides a comprehensive review of the law in all the states on various legal topics including adverse possession. (In general see 3 Am. Jur. 2d Adverse Possession, 1-312.)

Time Period (3 Am Jur 2d Adverse Possession 13)

Under the common law, the period for adverse possession was 20 years, and some states still use this as the period for adverse possession. Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. Cl. 545 (1997), cert. denied, 531 U.S. 957,(2000) (applying Maryland law); McGeechan v. Sherwood, 2000 ME 188, 760 A.2d 1068 (Me. 2000); City of Deadwood v. Summit, Inc., 2000 SD 29, 607 N.W.2d 22 (S.D. 2000)).

But, the length of time during which an adverse possession must be maintained varies in the different jurisdictions (B. Fernandez & Bros. v. Ayllon, 266 U.S. 144 (1924); J & M Land Co. v. First Union Nat. Bank, 166 N.J. 493, 766 A.2d 1110 (2001), (30 or 60 years for woodland or uncultivated tracts); Fairbanks North Star Borough v. Lakeview Enterprises, Inc., 897 P.2d 47 (Alaska 1995) (10 years); Gordon v. Simmons, 136 Ky. 273, 124 S.W. 306 (1910); Moore v. Hoffman, 327 Mo. 852,(1931); DelSesto v. Lewis, 754 A.2d 91 (R.I. 2000) (10 years); Chittenden v. Waterbury Center Community Church, Inc., 168 Vt. 478, 726 A.2d 20 (1998) (15 years); ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 774 P.2d 6 (1989) (10 years); Hovendick v. Ruby, 10 P.3d 1119 (Wyo. 2000) (10 years)).

In some states, the period of possession required to establish title by adverse possession also varies according to specified circumstances and requirements (Braue v. Fleck, 23 N.J. 1, 127 A.2d 1 (1956); Sashinger v. Wynn, 571 So. 2d 1065 (Ala. 1990) (10 years with payment of taxes and color of title; 20 without those factors); National Property Owners Ass'n v. Hogue, 229 Ark. 743, 318 S.W.2d 151 (1958); Tilbury v. Osmundson, 143 Colo. 12, 352 P.2d 102 (1960); Baudin v. Charrier, 137 So. 2d 440 (La. Ct. App. 3d Cir. 1962); Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311 (1958); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962); Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235 (1958); Marky Inv., Inc. v. Arnezeder, 15 Wis. 2d 74, 112 N.W.2d 211 (1961)).

Whatever the period required in the particular jurisdiction and under the particular circumstances, title by adverse possession cannot be acquired unless it is shown that the adverse possession continued for that period(Lawse v. Glaha, 253 Iowa 1040, 114 N.W.2d 900 (1962); Berglund v. Sisler, 210 Neb. 258, 313 N.W.2d 679 (1981); In re Harlem River Drive, City of New York, 307 N.Y. 447, 121 N.E.2d 414 (1954); Collins v. Smith, 1962 OK 128, 372 P.2d 878 (Okla. 1962)).

Public Property (3 Am Jur 2d Adverse Possession 268)

It is the general rule that title by adverse possession cannot be acquired as to public property, or to property held as a public trust.

Thus, title to public lands cannot be acquired by adverse possession as against the United States, a state, or local governmental bodies, except as otherwise specifically provided by statute. In some jurisdictions, adverse possession may not be used to acquire lands held for pious or charitable use.

Municipal and Quasi-Municipal Owned Property (3 Am Jur 2d Adverse Possession 270)

As a general rule, property held by municipal and quasi-municipal corporations cannot be acquired by adverse possession. This rule applies even if the property has not been irrevocably dedicated to public use. It applies to property owned by counties, municipalities, towns, school districts and universities, irrigation districts, and flood management districts. A municipality does not lose this protection merely by not using property if it intends to use it for public development in the future.

Property Owned in Proprietary Capacity (3 Am Jur 2d Adverse Possession 271)

Some jurisdictions distinguish between property that is held in a governmental capacity and that which is owned by a governmental unit in its proprietary capacity. In these jurisdictions, the general rule is that land or property of a municipality that is not held for a public use, but is held in a proprietary or business capacity, may be acquired by adverse possession, unless there is a statute that establishes a different rule.

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