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Sushil Kumar Bhatia (Advocate)     11 January 2009

adverse possession

 How to define adverese possession ? A owner of a property died last 20 years ago his heirs not turned up nor demanded rent from a tenant, The tenant can be treated as owner because of adverese possesion


 6 Replies

AEJAZ AHMED (Legal Consultant/Lawyer)     11 January 2009



Adverse Possession

Introduction to Adverse Possession:

Adverse possession is a principle of real estate law whereby somebody who possesses the land of another for an extended period of time may be able to claim legal title to that land. The exact elements of an adverse possession claim may be different in each state.


To prove adverse possession under a typical definition, the person claiming ownership through adverse possession must show that its possession is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period. These terms have special legal meanings as legal "terms of art", meaning that their definition for purposes of adverse possession law may be different from a definition you would find in a standard dictionary.


Please note that real estate laws can vary significantly between jurisdictions. Adverse possession is now usually governed by statute, and the law, definitions of terms, and the applicable statute of limitations can vary significantly between jurisdictions.


As previously mentioned the definition of "adverse possession" involves legal "terms of art" - words which have a special legal meaning that may differ from their standard definitions. The elements of "adverse possession" are that possession of the “PRMISES” is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period.


Actual - You actually acted in the manner of an owner of the property.


Open & Notorious - You engage in acts of possession consistent with the property at issue in a manner which was capable of being seen. (This does not mean that you must have been observed in your acts of ownership but, had the actual owner or members of the public been in a position to see you, your acts must have been observeable). You need not use the property in a manner that exceeds that which would be expected of the actual owner - that is, it may be possible to claim adverse possession of a vacation property on the basis of use only during the vacation season, or to claim adverse possession of a vacant parcel of land by engaging in typical acts of maintenance for the parcel.


Exclusive - The adverse possessor does not occupy the land concurrent with the true owner or share possession in common with the public. One does not have to exclude others from the land in order to claim "exclusive" use, but during the statutory period the person claiming title by adverse possession must have been the only person to treat the land in the manner of an owner.


Hostile - Hostility exists where a person possesses the land of another intending to hold to a particular recognizable boundary regardless of the true boundary line. That is, possession is "hostile" to the title owner's interest in the property. If possession was not hostile, it may still be possible to advance a claim of ownership under a theory of "acquiescence". You cannot claim "adverse possession" if you are engaged in the permissive use of somebody else's land.


Under Cover of Claim or Right - Either when the person claiming the property makes the claim based upon constructive possession under color of title (e.g., there is an error in the legal description in their deed leading them to believe they own part of a neighboring property), or makes the claim based upon actual use and possession of the area of land at issue for the statutory period.


Continuous & Uninterrupted - All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. It may be possible to claim adverse possession even if there is a transfer of ownership through the principle of "tacking" - for example, a former owner's twelve years of adverse possession can be "tacked" to the present owner's eight years, for a cumulative twenty years of adverse possession.


The Statutory Period - The statutory period, or "statute of limitations", is the amount of time the claimant must hold the land in order to successfully claim "adverse possession".

Common Defenses to Adverse Possession

While the following list is far from exhaustive, these defenses are very often brought in adverse possession actions:


Permissive Use - If the actual owner has granted the claimant permission to use the property, the claim of "adverse possession" cannot be deemed "hostile" and thus fails.


Public Lands - Government-owned land may be exempt from adverse possession.


Insufficient Acts - Although it is conceded that the claimant engaged in some use of the property, it is alleged that these acts were not sufficient to amount to acts suggesting a claim of ownership.


Non-Exclusive Use - Although it is conceded that the claimant engaged in some use of the property, it is alleged that others (usually the property owner) also used the property in a manner consistent with that of the landowner.


Insufficient Time - Even if various elements of adverse possession were met, it is alleged that the adverse possession did not last for the full statutory period, or that the adverse possession was interrupted by a period of non-use.




For claiming title by way of adverse possession, it is necessary to have a decree of a Competent Court against the real owner of the property.


Next question arises TENANT in the aforesaid facts of having in exclusive use, occupation and possession of the said property for more than 12 years can claim ownership by adverse possession?


For getting title by the adverse possession it is necessary that such use, occupation and possession must be against the wishes of the owner. If the possession is given by the Owner or with consent of the Owner one cannot claim adverse possession.




(i)  Exactly, you are having right to claim the Property in question under "ADVERSE POSSESSION ".


(ii) If nobody, including the "LEGAL HEIRS" of your "LAND LORD"  are claiming over the Property in question since Last 20 Years, then you can claim under Adverse Possession. 

(iii) But, you(TENANT) have to get "PERFECT THE TITLE" under "ADVERSE POSSESSION" by filing a Civil Suit against the Legal Heirs, before the Concerned and Competent Court of Law.


Important Note :


(a) Be careful, if you are the "Tenant", while filing suit with the claim of Adverse Possession against the Legal Heirs of the Landlord.  "Try to get Exparte Decree"


(b) Or Otherwise if you are on behalf of the "Legal Heirs" take benefit under the following Judgment.




Harish Chand and Anr. Vs. Rameshwar Dayal Mangla alias Ramesh Chand (Decided on 25.03.2008) MANU/PH/0535/2008.


Adverse Possession -Whether continuous possession over the suit property for more than 21 years prior to filing of the suit makes claimant entitled to right of ownership by way of adverse possession.


Permissive possession cannot become hostile by long lapse of time and it does not entitle the licencee to claim adverse possession.A suit for mandatory injunction can be filed by the owner of the immovable property on the termination of the licence.The grant of licence may be express or implied which can be inferred from the conduct of the parties. Though there is no writing with regard to the property having been given to the defendant, however, permissive possession is proved from the fact that house tax and property tax receipts are in the name of the plaintiffs, which is also admitted by the defendants. It is not necessary for the licenser to file a regular suit for possession by paying court fee on the market value of the property.


Sushil Kumar Bhatia (Advocate)     11 January 2009

Many Thanx Mr.Aejaz to solve the problem

Ajay kumar singh (Advocate)     11 January 2009

A tenant is always a tenant and his possession is permissive.He can not claim title by adverse possession.Please see sec.116 of the Evidence Act.

M. Sahul Hameed (Advocate Profession)     12 January 2009

The Tenant cannot be treated as landlord and he is always tenant in permissive possion.The tenant is having become a tenant and holding on to the property on the basis of the landlord's title, the tenant is not entitled to repudiate or dispute the title of the lanlord.


Here in Ahmedabad, one intresting case is come for discussion us. If, any one have solution/advise please reply.

THere are more than 90 huts on one land for than 15 years, one person was collecting money as rent but not giving any receipt or paper. subsequently, came to know that he is trespasser not a landlord. landlord had filed suit on him and won the case. It was also proves that its agriculture land but since 1980 it was not use for agriculture purpose.

on second hand, people living in hut have filed different suits for declaring them as tenant and do not dispossess them  and landlord and a trespasser were defendants in those suits, which is rejected by trial court and appellate court and pass an order that they are not tenant.

Now, can huts owners/living persons in huts can file a suit for adverse possession?

Please advise....

Jyoti (Business Development Executive)     08 September 2009

I was under possession of a office premises. it was actually told to me by the owner that it is my property because i had given him some money more than 16 years back. I was under possession of the office for 14 years and owner dint transfer property misleading me by saying there is some legal problem with the property. This year I was suffering from cancer and I was unable to attend to the office and he empties my staff and changes all the billing address. Can I claim for ownership through adverse possession. This has taken place in the last 2 months so I need to know whether should i act fast ? as I am physically not capable for the next two months to run around.

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