Tuesday, March 18, 2008, 3:35 PM

COA Decides Adverse Possession Case Involving Permissive Use Interrupting 20-Year Period

Today, in a split adverse-possession case, the Court of Appeals (COA) addressed what happens when, during the 20-year statutory adverse-possession period, the true owner of the land gives the hostile possessor permission to continue use. Does the grant of permission destroy the claim of adverse possession? It depends. The case is Jones v. Miles.

Plaintiffs filed suit contending they had acquired ownership to a disputed tract of land by adverse possession. The statutory period for adverse possession is 20 years. Plaintiffs' possession of the tract was hostile for 11 years, at which point the true owner gave them permission to continue using the tract.

The COA held that a true owner's grant of permission will defeat a possessor's hostile use -- thus destroying an adverse-possession claim -- if the possessor takes no further action to reassert his claim over the land after permission is granted, i.e., if the possessor fails to put the true owner on notice that he still intends to claim the disputed land. The adverse possessor's secret intent to claim title isn't good enough to establish adverse possession; if the possessor uses the land with the true owner's permission, yet secretly intends to claim title to the land, such possession isn't hostile for purposes of establishing an adverse possession claim. To establish adverse possession after a grant of permission during the 20-year period, the COA held, the possessor must either reject the grant of permission or otherwise take some affirmative step to put the true owner on notice that the possessor's use of the land remains hostile.

In today's case, authored by Judge McGee, there was no such evidence -- no evidence that plaintiffs expressly rejected the true owners' grant of permission or otherwise took affirmative steps to put the owners back on actual or constructive notice that plaintiffs intended to continue possession of the disputed tract in a manner hostile to the owners' interests. Therefore, the majority held, plaintiffs failed to establish adverse possession.

Judge Tyson dissented. He concluded that the true owners' grant of permission didn't toll the 20-year period. Recognizing a split in authority in other jurisdictions, Judge Tyson said the better rule is this: Once adverse possession has begun and the owner is on notice of the hostile use, the burden shifts to the owner to take physical or legal action to interrupt the running of the 20-year period.

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