Quiet Title and Adverse Possession (Explained by a Real Estate Attorney)

Quiet title and adverse possession both involve the ownership of real estate. Often, a quiet title action is filed to confirm or disconfirm ownership based on adverse possession. This article explains how that might occur.

To understand the role of adverse possession within a quiet title lawsuit, you must first understand the meaning of the terms “quiet title” and “adverse possession“.

Quiet Title Action: The Claim of Ownership

A quiet title action is simply a lawsuit to confirm or establish ownership of real estate. Within a quiet title action, different theories of ownership could be asserted to “win” the quiet title action. Someone might claim ownership based on a normal deed. Or, someone might claim ownership based on a will or inheritance. A “quiet title” is the umbrella term for a lawsuit that claims ownership of real property for any reason. But the quiet title claim must be supported by a valid underlying legal theory of ownership.

Adverse Possession: One Underlying Theory of Ownership

Adverse possession is one possible theory of ownership that might be asserted within a quiet title action. Adverse possession is one of the only ways to obtain ownership of property other than deed or inheritance. In most states, the following elements (or some variation) are required to establish adverse possession:

  • Open & Notorious. To succeed on an adverse possession claim, the claimant’s possession of the property must be notorious and obvious to the public. A property cannot be “possessed” in secret. If someone were to walk by and observe the property, it should be apparent that the claimant is in possession of the property.
  • Hostile & Exclusive. The claimant must possess the property to the exclusion of everyone else. If the claimant is merely entering the property or using the property without objection from the record owner, then the possession is not hostile and exclusive. The claimant must act as if the property belongs to him and him alone.
  • Continuous. The claimant must have uninterrupted, continuous possession of the property for the required statutory period. The required period varies by state, usually ranging from 5 to 15 years. There cannot be a break in the possession, or the statutory clock starts over.

The above summary is a very simplified version of the requirements for adverse possession. Send me a message if you have questions.

Adverse Possession Can Be Difficult to Establish

If the claimant satisfies the adverse possession requirements, then they can successfully bring an action to quiet title based on adverse possession. The success of the quiet title lawsuit depends on whether each and every element of adverse possession can be firmly established in court.

This is hard to do. Adverse possession claims are not easy to win, because the claimant is asking the court to disregard record title ownership and declare a new owner. Due to the extreme nature of the claim, courts generally impose a high evidentiary bar on adverse possession claimants. This means that each element of adverse possession must be clearly proven and not subject to question.

Many times, parties hope to obtain ownership simply by paying the taxes or performing maintenance for a few years. Taxes and maintenance are only a few of the many factors to be considered in an adverse possession analysis. The bar is much higher than paying a few tax bills.

Important Quiet Title Topics:

What is a Quiet Title Action? (A more detailed definition)

Quiet Title Process (step-by-step)

How Much Does a Quiet Title Action Cost?

Can I Do a Quiet Title Myself?

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