Also known as Adverse Possession.
Adverse possession is the occupation of land that belongs to someone else without permission.
Under certain circumstances, it may allow the person in possession to acquire the right to be registered as the owner of the land.
The reason for this is that when unregistered land is purchased, it can be difficult to establish whether the person that is selling it has legal title to it, and so has the right to sell it.
Furthermore, it can be difficult to determine whether the person that sold it to them had the right to sell it, and so on and so on.
What is the 12-year Rule?
The ‘twelve-year rule’ means that if a person has been in possession of unregistered land for 12 years, then they can acquire legal title to the land. This means that subsequent purchasers can have certainty about their title. The obligation on owners is to check their land at least every 12 years.
This ‘rule’ can provide certainty of title, and clarity, for example where a boundary has existed in the wrong location for a long period of time. However, it can also be taken advantage of by ‘squatters’ giving them the opportunity to acquire the apparently vacant property.
Effect of Adverse Possession
While adverse possession alone does not result in a transfer of legal title. It gives a person a vested property right in the area possessed. Once a person meets the statutory requirements for adverse possession, they may initiate a quiet title action and obtain legal title to the property.
Related: What to know about Land Laws in Kenya
Requirements
The requirements for adverse possession are governed by state statute and may vary significantly between jurisdictions. A typical adverse possession statute requires that the following elements be met:
Open and Notorious:
The person seeking adverse possession must occupy a parcel of land in a manner that is open and obvious. The person may not occupy the land secretively or make efforts to remain undetected. A landowner is not required, however, to have actual knowledge of the occupation.
Exclusive:
The land must be occupied exclusively by the person seeking adverse possession and may not be shared with the public or the true owner.
Hostile:
The occupation must be hostile and adverse to the interests of the true owner. If a landowner has given a person permission to use the property, the possession is not considered hostile.
However, a landowner is not required to have actual knowledge of the occupation. So long as the occupation is adverse to the owner’s property interests.
For example, a landowner may be unaware that his neighbour’s fence extends several feet over his property line. The occupation is sufficiently hostile. However, because the landowner has not given his neighbour permission to encroach upon his property in this manner.
Statutory Period:
Possession of the land must continue for the state’s predetermined statutory period. The statutory period for adverse possession may be as short as three years or as long as twenty years.
Many jurisdictions allow an adverse possessor to “tack on” their period of adverse possession to a previous possessor’s period, so long as there is no lapse in time between the two occupations.
A statutory period will not begin running if a landowner is an infant (below the age of majority), if the landowner is deemed insane, or if the landowner is incarcerated.
If the landowner suffers from one of the above conditions during the statutory period. The statutory period will not be tolled and may continue uninterrupted.
Continuous and Uninterrupted:
All elements of adverse possession must be met at all times during the statutory period. However, an adverse possessor is entitled to use the property in a manner consistent with the type of property being possessed. For example, use of a lodge may be continuous even if it is only used during the holiday months.
Limits on Adverse Possession
Note it is not available in all situations. For example, title to government-owned land may not be obtained by adverse possession.
See Also: THE LAW ON ADVERSE POSSESSION IN KENYA
Note: This article is all from research and does not reflect the author or company’s thoughts on the issue. We encourage you to do your own research.
