What is Adverse Possession?
Someone may be "squatting" on your land, and could be there for good if you don’t move fast. It’s called Adverse Possession and it’s legal in Indiana.
In order to claim the property as their own under the doctrine of adverse possession, a property must be possessed by the person asserting their rights to the property. The possession must not be fraudulent, but exclusive to the would-be possessor for a period of time; in Indiana, 20 years. The timeline for adverse possession starts running after a party has possession of the real estate and other parties with ownership interests have notice, or constructive notice, that the property is possessed by that person . Notice is constructive if it is brought about as a result of an act of the party seeking to exert his or her rights.
In the case of an adverse possessor, if they have been occupying the property for the 20 year period, they can essentially "steal" your real estate. If they can prove they have exclusive control over the property, the government can approve their title to the property. Except in some limited circumstances, the damage is done and the original owner cannot stop the adverse possessor from obtaining "legal" ownership.
A Brief History
Historically, adverse possession first came about under the English common law of 1200 A.D., and codified in the Statute of Westminster in 1275. Unlike many areas of the law, adverse possession has an undisputed lineage. Indiana adopted adverse possession in its territorial statutes in 1824, following the original English terminology. A non-possessor could clear title to real estate that had been used by another for just ten years. In 1827, Indiana passed a statute requiring the non-possessor to file an action with the county recorder after ten years of use; and the period was extended from ten to twenty years in 1831.
By the end of the nineteenth century, adverse possession became increasingly complicated and formalized, as non-possessors began asserting a variety of claims for entry under the adverse possession statute to the county recorder. This practice slowed the recording of legitimate instruments of conveyance, in turn causing the "turbulence in paper title which everyone knows." Before 1911, Indiana’s current adverse possession statute (now Indiana law at I.C. 32-23-1) limited adverse possession to "settlement under color of title." Since 1911, the statute has allowed land to be acquired through adverse possession simply by possessing it for period of time specified by the statute.
The goal of this body of statutory law is to protect both the possessor and the non-possessor. The possessor is protected from the re-entrance of the former owner by a statute of limitations, which would otherwise entitle him or her to evict the possessor from the property. The non-possessor is similarly protected from fraudulent claims of ownership and disturbance of university for title, as the purpose of the law is to protect situations where a person moves onto real estate without being aware of the fact that a former owner has retained ownership.
Requirements for Indiana Adverse Possession
The legal requirements for a successful adverse possession claim are somewhat strict and, as a result, adverse possession awards are fairly rare. Adverse possession is a prescriptive remedy for the encroachment of lands; not a tolling of the statute of limitations as for civil actions. To prescriptive an easement or establish title to real estate by adverse possession for open, notorious and uninterrupted user for the statutory period of ten (10) years, one must have "granted all of the elements of adverse possession." Bender v. Decker (1994), Ind.App., 632 N.E.2d 776, 779, citing Comb’s Adm’r v. Peyton’s Adm’r (1891), 130 Ind. 169, 29 N.E. 919; State Bank of Springville v. Vaught (1989), Ind.App., 539 N.E.2d 1163, 1165, trans. denied.
In Indiana, the elements required for the existence of an enforceable easement represent fairly a codification of the holdings of the Indiana Supreme Court and Indiana Court of Appeals, and the resulting jury instruction on adverse possession. The elements for adverse possession doctrine are: (1) continuous use, (2) open and notorious, (3) under claim of right or color of title, (4) uninterrupted, (5) exclusive and (6) in hostile opposition to the true owner. State ex rel. Miller v. Nixon (1978), 175 Ind. App. 591, 343 N.E. 2d 825. The Supreme Court of Indiana has explained that the law of adverse possession is designed to settle revolting claims rather than to extend favors to people who have abandoned and neglected to look after their possessions. Combs Adm’r v. Peyton’s Adm’r, (1889), 121 Ind. 162, 22 N.E. 915. It is not founded upon the want of title, but on a principle of state policy as to the acquisition and security of titles to land, that those who have purchased land and settled on it shall not be disturbed in their possessions, and that an unsettled title shall be ex tinct in a period of time.
Under Indiana law, whether or not there exists sufficient evidence to support a claim of adverse possession is based on whether or not there are facts to support each element of the claim. The burden of proof on each of the elements is on the party asserting title by adverse possession. While a party need not present "absolute proof" of adverse possession, he must produce "clear and cogent evidence." State ex rel. Miller v. Nixon (1978), Ind. App., 343 N.E. 2d 825. The standard for appellate review regarding findings of fact is whether there is evidence of probative value to support the trial court’s findings. Stvenson v. State City of Gary (1993), Ind. App., 613 N.E. 2d 30.
A claim for adverse possession must be denied if there is no evidence to support one or more of the elements. The failure to properly present the existence of all these elements will result in a denial of a claim for adverse possession.
Claiming Adverse Possession
When claiming adverse possession, the individual must meet five elements of Indiana law:
- Actual Possession: The individual must possess the property, using it as if it is their own and actively treating it as their land. Just not being caught trespassing may not be enough.
- Open and Notorious: The occupation must be obvious and visible to anyone who looks, which allows the true owner the opportunity to remove him or her. A burglar may occupy the property, but it’s not obvious to a casual observer. This can be shown by putting up fences or blocking others from entering the property.
- Continuous: The possession must not be interrupted by the true owner, and the person in possession must occupy the property within 10 years of claiming it.
- Exclusive: The person in possession must do so without sharing the property with the true owner or the public at large. If the property is hotel room, the room is exclusive to the tenant, but the hotel itself is shared by the general public and off limits to the tenant.
- Hostile: This element is open to interpretation but means the occupant’s use of the property isn’t shared with permission of the true owner.
If the possessor in fact can show these five elements, then he or she has the right to file in court. There’s no required timing for bringing the case since the statute of limitations has expired, but the action must be brought within 10 years of the possession. The action is filed in the circuit or superior court of the county where the property is located, and the holder must join in the action all parties who are permitted to bring proceedings for ejectment of the person in possession.
There’s no set filing format, but the suit should clearly state that the individual has satisfied the five elements of the adverse possession statute and requests a hearing before the court to quiet title for the property in question. The hearing will be set by the court and notices sent to any parties who have an interest in the property. These parties will then have an opportunity to appear and contest the five criteria of the adverse possession statute. The best opportunity for success is to hear on the side of caution and retain experienced counsel when filing for quiet title, especially if the property is valuable.
Indiana Adverse Possession Defenses
A peculiarity of Indiana law on adverse possession is that it places the burden on the homeowner on whom an adverse possession claim is being placed, to defend against it. Any homeowner may obtain a ruling from a court even if there has never been an adverse possession suit filed against them. This tactic is especially encouraged in Indiana because if a claim of adverse possession is raised against your property and it is then later determined to be invalid, you may be entitled to your attorney fees, which effectively ends the matter and discourages even the basest of claims.
The specific rule in Indiana is that if possession of an area of land is under a claim of right or title and if it is open and notorious possession, then upon proper notice to the person who was the last to pay the taxes on the property, the question of whether the possession was exclusive and hostile is a question for the jury. Because a jury will ultimately make this decision, many conservative courts side with the gentle hand of an easement or some other less harsh allowance to cross-claimants rather than the annihilating force of an adverse possession claim .
This means that the burden is on you, the homeowner, to fight against an adverse possession claim. There are several ways to go about this which largely depend on the nature of the adverse possession claim. If the claim is made over your fence line, then your case is simple: all you need is stated survey showing that the fence is on your property. If it is someone encroaching onto your driveway, then all that you need is a reclaimed title to the property.
Take care, though, as not all title companies are equal. Your title company needs to be thorough and if giving you a certificate of title which includes where your land is, it must explicitly say the boundaries and where they are on the land. Other certificates of title which do not have the boundaries or where they are on the land are not as useful because the encroaching party will want to claim that the boundaries are somewhere other than what you may believe.
By knowing where your boundaries are and where your possessions are on the land, you can stop potential adverse possession before it ever becomes an issue.
More Recent Adverse Possession Cases
In recent years, adverse possession has been the focus of intricate litigation in the state of Indiana.
In 2009, the Indiana Court of Appeals in Hagar v. Walsh 903 N.E.2d 999 (Ind.Ct.App. 2009) clarified the requirements plaintiffs must meet to claim adverse possession by color of title for a period of ten years. In Hagar, the defendant owned a seventy-one unit apartment complex, Arbors Apartments in Richmond, Indiana. In 1968, the HOA filed an action to convey a 12-foot strip of land (the "disputed land") to the HOA or pay for the land. Fifty-eight years later, in 1980 one of the HOA’s principals, Julie Hagar, received a quitclaim deed from the HOA to the disputed land. When the apartment complex foreclosed, the bank that acquired ownership did not redeem or refute the Hagar’s ownership of the property. The dispute began when the Hagar’s sought to sell the property to J&J Building, LLC, and the bank alleged that the HOA owned the disputed land. The Court of Appeals held that although the HOA had claimed ownership of the disputed land for over twenty years through two separate court actions and a quitclaim deed, the 1980 and 2000 deeds included pertinent covenants and clauses signifying that the intention of the grantors was to convey only the undivided interest the association had. In 2011, the Supreme Court reversed the Court of Appeals decision in Hagar, holding that one cannot adversely possess a property conveyed by a deed with pertinent covenants, conditions and restrictions contradicting the adverse property claim. In 2014, the Indiana Court of Appeals applied the doctrine of common law floodway to affirm adverse possession of the bed of the Ohio River. See City of Jeffersonville v. Clark 24 N.E.3d 983 (Ind.Ct.App. 2014). In 1896, forty-four acres of land along the Ohio River were deeded to Henry D. Clark, but the deed was not properly recorded or examined when the federal government purchased land in the state of Indiana. Over the years, the property was develop to include a sewage treatment plant owned by the Clarksville Sanitary District. In 2004, the City of Jeffersonville claimed ownership of the land and sued Clarksville Sanitary District to recover damages for back rent, trespass, and water damages caused by the sewage treatment plant on the disputed land. The Court of Appeals held that Clark’s who purchased land adjacent to the disputed land from the state of Indiana prior to the acquisition of that very property by the federal government has adversely possessed the land.
Implications of Adverse Possession for Property Owners
The doctrine of adverse possession in Indiana, which has been used by squatters and those seeking to claim an interest in land they do not own, has strict requirements that must be met before available to serve as a basis to acquire title to property. The requirements include the typical elements of exclusive possession, open possession, and continuous uninterrupted possession of the property for at least 10 years. For unauthorized use of a portion of a claimant’s lot to supply the required boundary, the use must have been open and notorious. Such possession must also be hostile and under a claim of right. Acquisition of title by adverse possession is an extraordinary event, requiring the claimant to essentially steal and encroach upon the land of another. Its burden is a heavy one. Although historically it took a minimum of 20 years to acquire title by operation of adverse possession, this burden was sufficiently relaxed in the Second District in 2009 to allow acquisitions within 10 years. The final element of an adverse possession claim requires that such property must be used exclusively. Mere use of a portion of a lot without it being used exclusively will not satisfy the requirement that the possession be exclusive.
As a practical matter, this means that owners of improved lots—those having residences and improvements—need to be aware of any third parties’ claim or usage of portions of their property. A flag should be raised when a lot or area is being used for storing equipment without the permission of the owner or when an individual claims to have exercised ownership to that property without objection from the owner. Property owners whose land is adjacent to owner-occupied lots should pay particular attention to the borders between the two properties for evidence of encroachment. Without evidence that someone is occupying your land without permission, a presumption exists in favor of the record title holder—meaning the adverse possessor will bear the burden of demonstrating a legal basis for a prescriptive easement or adverse possession claim.
Indiana Adverse Possession Conclusions and Legal Guidance
The information presented herein about Indiana’s laws regarding adverse possession is meant to be solely for the reader’s education as a starting point for further research. Because there are many nuances to how a court might apply these legal principles to any given individual case , it is important that the reader consult with an experienced attorney if he or she has any questions about potential adverse possession claims involving his or her own property.
At least for the time being, adverse possession can only occur over real property, and then only for the actual portion of it that the adverse possessor possesses. However, the fact that a party’s claim is based on adverse possession can still be helpful in figuring out various issues that arise.