There’s an old saying that goes, “Possession is nine-tenths of the law.” You may have heard this when you were a child and fighting with a sibling over a toy you both wanted.
While the expression itself is not strictly accurate, it does touch on an important and often misunderstood principle in real estate law.
Under the principle of adverse possession, a person can gain rights over property owned by another person through possession.
Elements of adverse possession
The basic policy idea behind adverse possession might be described as “use it or lose it.” The idea is that a landowner who is not maintaining their property rights may, in some cases, lose those rights to another party who makes use of the land.
To satisfy the elements of adverse possession under Montana law, the possession must be:
- Continuous and exclusive: The person must have individually and continuously possessed the land.
- Hostile: The person must have used the land without the owner’s permission.
- Actual: The person must have resided at the property.
- Open: The person possessing the property must not have done so secretly. Rather, they must have openly occupied the property.
A person who possesses land under these circumstances for five years or more may be said to have acquired rights to it through adverse possession.
To provide an example, imagine that Brian owns a large plot of land outside of Billings but has not visited it in years. Bobby owns the adjacent plot and builds a new house over the property line, on land that is owned by Brian.
Six years go by before Brian discovers what Bobby has done and demands that Bobby remove the house. Bobby argues that he has gained rights to the land through adverse possession. The court examines the evidence and sees that Bobby has met all the elements and now has title to the property.