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By: Jack Kubiszyn
Christian & Small LLP
Birmingham, Alabama

Imagine being told that your property line is different than your understanding of its location or that someone else claims that they own a portion of your property. These are real-life situations that pop up every day when people dispute who owns certain property. These property disputes generally involve one party alleging that it owns a particular parcel of land because it has treated it like their own for years – that is, that the law recognizes them as the rightful owner since they have adversely possessed the property for a sufficient period of time. So what are the timeframes and actions a person has to take to prevail as the owner of property in such a situation? Alabama’s adverse possession laws address these types of property disputes and what is required to prove ownership.

Why does the law allow a person to obtain ownership of another’s property merely by exercising control over it for a certain period of time? The main rationale is to allow real property in Alabama to be utilized and cared for when another has neglected or ceased to do so. This concept is called obtaining ownership by adverse possession. Alabama recognizes two separate types of adverse possession – “adverse possession by prescription” and “statutory adverse possession.” Adverse possession by prescription requires that the party claiming ownership of the property by adverse possession establish several elements of possession – namely, that the claimant’s possession be actual, exclusive, open and notorious, hostile, and continuous for a period of 20 years. Statutory adverse possession likewise requires the party claiming ownership through adverse possession to establish the same elements of possession, but the time period is reduced to 10 years if the claimant can also prove the following additional elements set forth in Alabama Code § 6-5-200:

I.        Adverse possession cannot confer or defeat title to land unless:

I.        The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the Judge of Probate in the county in which the land lies for 10 years before the commencement of the action;

II.        He and those through whom he claims shall have annually listed the land for taxation in the property county for 10 years prior to the commencement of the action if the land is subject to taxation; or

III.        He derives title by descent case or devise from a predecessor in the title who is in possession of the land.

Alabama treats boundary disputes as a hybrid of the two types of adverse possession recognized in Alabama – that is, in order to show ownership by adverse possession in disputes between adjacent property owners over the location of a boundary line, the same elements of possession must be shown but only for a 10-year period and the additional elements set forth in Alabama Code § 6-5-200 are not required. Having a matter designated as a boundary line dispute is important to a party claiming ownership by adverse possession since it reduces the time period for possession from 20 to 10 years and eliminates the additional statutory requirements.

It seems pretty straightforward when a matter involves a property line dispute, right? Not always, as Alabama also recognizes that if the dispute involves someone claiming all or a “significant portion” of another’s property located adjacent to them, it is NOT deemed a boundary line dispute. What constitutes a significant portion of someone’s property depends on the facts of each case. If the matter does not qualify as a boundary line dispute, then elements of the statutory adverse possession or the adverse possession by prescription must be shown for the required time frame.

Regardless of whether the property dispute falls in the category of adverse possession by prescription, statutory adverse possession, or a boundary line dispute, the party claiming ownership must prove the same elements of ownership discussed in detail below by clear and convincing evidence:

1. Open and notorious possession – Mere possession of the property is not enough – rather, the use by the party claiming ownership through adverse possession must show that the adverse holding and use of the property was either known to the owner or that the possession was so obvious that a presumption of notice of an adverse claim against a landowner should be imposed. Acts such as paying taxes on the property or authorizing someone to cut timber is not, in and of itself, sufficient. On the flip side, physically residing on the property is not required either. Alabama recognizes that the property need only be utilized in a manner consistent with how a true owner would use that particular type of property, so what might be satisfy this open and notorious element for vacant land may not be the same for improved property. Alabama law does recognize that actual possession of the property in question, such as erecting fences, grazing livestock, growing crops or gardening on the property in question, is generally sufficient to establish this element.

2. Hostile possession – In order for this element to be satisfied, the possessor claiming the property by adverse possession must hold and claim the property as his own and it does not matter if one does so by mistake or with willful knowledge that he does not actually own the property. Alabama courts recognize that a mistaken belief is immaterial so long as the adverse possessor’s intent is to assert control over the property.

3. Continuous possession – Depending on the type of adverse possession that is applicable (i.e., adverse possession by prescription, statutory adverse possession, or the hybrid adverse possession in boundary disputes), the person asserting adverse possession must show uninterrupted possession for 10 or more years. The payment of taxes is evidence of ownership and continuousness of possession. This element of continuousness may be established by adding to or “tacking” the time a prior owner adversely possessed the property onto the time of the current person claiming ownership by adverse possession. However, in order to do so, there must be privity, that is, the continuity of possession, between the prior and present party claiming adverse possession.

4. Exclusive Possession – This element requires that a person establish that his right to possess the property is distinct from all others. Specifically, Alabama law recognizes that “two persons cannot hold the same property adversely to each other at the same time.” This “exclusivity” element has been defined by the Alabama courts as follows:

Exclusive possession means that the claimant must hold possession of the land for himself, as his own, and not for another, or must maintain exclusive dominion over the property and appropriation of it to his own use and benefit. To establish exclusive possession, there must be an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner. Exclusiveness essential to adverse possession may or must be shown by acts which comport with ownership and would ordinarily be done by an owner for his own use to the exclusion of others, and all such acts must be considered collectively in determining the sufficiency of possession. Exclusiveness of possession is often evidenced by the erection of physical improvements on the property such as fences, house or other structures and, in their absence, substantial activity on the land is required.

Strickland v. Markos, 566 So.2d 229, 235 (Ala. 1990).

5. Actual Possession – In order to establish this element of possession, there is not a requirement to physically reside on the property, but rather, Alabama recognizes that the property need only be used consistent with the property’s nature as a reasonable owner would act. The Alabama courts have recognized that the presence of a fence symbolizes possession and, coupled with the normal use of the land, sufficiently satisfied the requirements for adverse possession.

So which of these elements of possession carries the most weight in establishing ownership by adverse possession? The answer is that they are all essential as the courts in Alabama look to the collective possessory acts of the individual claiming ownership by adverse possession. In fact, if one element of possession is not met, ownership by adverse possession does not exist.

If there is a dispute whether you or another party own certain property, what can you do? It depends on what side of the “fence” you are on in the dispute. If you feel that someone is trying to improperly obtain part of your property by adverse possession, try to get a written agreement that their use of your property is with your consent. This can be done by lease, easement, contract allowing the use of your property for a specific purpose and time period, or recognizing a specific boundary line between the properties. Any one of these agreements will serve to keep the other party from establishing the elements required to prove adverse possession.  On the flip side, if you feel that you own certain property based upon your use and care for the property in the past, document as much as possible the evidence supporting each of the ownership elements for adverse possession and, if possible, try and reach an agreement with the adjoining landowner on the ownership of the disputed property. If these options are not successful, a court may be the only alternative to determining the true owner of the property.