Adverse Possession

Cornell Law School defines adverse possession as “a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.” Establishing or settling a title to certain real property (generally fixed property like land and buildings) often requires meeting all of certain specific factual requirements. That certainly is the case in Arkansas when the method for settling a title is application of the concept of adverse possession. Adverse possession cases often involve boundary line disputes or encroachments.

The list of requirements for establishing title by adverse possession in Arkansas is longer than that of some jurisdictions because, while it has been generated over hundreds of years by the common law, it also has been added to by very specific Arkansas statutes, most notably A.C.A. §18-11-106, which codifies Act §776 of 1995, §1, and Act 84 of 2005, §1.

The overall purpose of the concept of adverse possession has been similar to that of statutes of limitation generally—that is, to bring closure to claims that are or may be contested, within a reasonable time, given that owners may have come to act in reliance on a perceived state of ownership.

But the Arkansas statutes have added more requirements to the common law list, most recently to deal with perceived abuses, given that takings by adverse possession always involve an involuntary loss or forfeiture, which is not favored in the law.

Elements of Adverse Possession at Common Law
The claimant must occupy the property claimed (which would include occupancy by tenants) exclusively for at least seven years to obtain possession of the property. For example, possession of a pasture might not be exclusive if both the claimant and the record owner have grazed cattle in the pasture. If the claimant fenced the pasture and otherwise excluded the record owner (and others), the possession would be exclusive.

The occupation must also be continuous. Exclusive occupation for a couple of years of that pasture, for example, followed by non-use for four years and then a return for a year would not be sufficient. (The seven-year period that is central to adverse possession is not the same as a statute of limitations, perhaps for trespass, which would start to run at that first possession.) The term “claimant” may include previous occupants.

To obtain possession, the occupation must be open and notorious and hostile—that is, it must be such that a reasonable observer could recognize it. It cannot be tucked away and out of sight, or somehow concealed, as with a fence line overgrown by dense undergrowth.

The claimant must occupy the property with the intent to hold against the true owner. That means a claimant must act as if she believes that she owns the property claimed, in good faith. However, possession may be “constructive”—that is, a claimant might occupy and possess a house and pasture without physically occupying the pasture, if she has color of title to both house and pasture, and pays the taxes on both. In this context, “color of title” means that the claimant’s occupancy is pursuant to a document, such as a deed or will, which also describes the claimed property. Cornell Law School defines color of title this way: “A person has ‘color of title’ to a piece of property when, for one reason or another, the document evidencing title (a deed, for example) is invalid.”

The true owner must have actual notice of the claim, or circumstances must be such that the notice is assumed.

Some uses are merely permissive—an occasional passage over the pasture of the cattle in our example would not likely telegraph to the true owner that an adverse claim was intended. Regular passage, without comment from the true owner, would be more likely to create a prescriptive easement (right to use property without the owner’s permission, acquired by open, obvious use over a period of time established by state law), which would not require exclusivity.

The concept of adverse possession requires owners to stay informed about their property, but also requires claimants to communicate their intentions.

ADDED STATUTORY REQUIREMENTS
Simply stated, the statutes now require claimants to have color of title to the property claimed or contiguous property and to have paid ad valorem taxes (which are levied according to the value of property as determined by an appraisal or assessment) on it or contiguous property for seven years, in addition to meeting the common law tests.

Color of Title
In this context, the term “color of title” means that the claimant obtained her title based on a document such as a deed or perhaps a will that, on its face, evidences passage of title to the property claimed. A claimant’s title can qualify, even if it is defective, if that defect (such as a bad legal description) can only be discovered by examining other documents. This bears on the implied good faith requirement. The claimant must be able to state that she thought she got title based not only on possession meeting the other listed requirements, but also based on a document. In other words, a claimant cannot simply squat on another’s property for seven years without such a document, as to the claimed property or as to contiguous property, and without paying taxes on the property claimed or on contiguous property.

The most common adverse possession cases involve boundary line disputes or encroachments—hence, the inclusion of contiguous properties in the statutory elements of the concept. In particular, the statues recognize that a property owner may have received a deed, perhaps to a platted lot, and built a fence or otherwise occupied a portion of an adjacent lot, believing that the true property line was reflected by the location of the improvements.

For example, suppose a claimant lived in a platted subdivision next door to the true owner. Suppose that she met all five of the common law requirements. Suppose further that she had a deed to her property that described her property and that of the next door neighbor, each by lot and block. Suppose her tax bill was consistent with her deed. And finally, suppose that the claimant built a tool shed that encroached over three feet onto her neighbor’s property. If the 1995 statutory revisions reflected in A.C.A. §18-11-106 were not qualified, her claim would fail because she had neither color of title nor a tax bill to the ground under her shed. But, the revisions are qualified by the contiguity exception—so her own deed and tax bill would be enough.

Again, the color of title and tax payment requirements, the adoption of which was prompted by a particularly outrageous course of conduct by a claimant with no ownership at all, are intended to prevent adverse claims by squatters, not by neighbors, in subdivisions or otherwise.

For unimproved and unenclosed property (such as the pasture in our example), color of title can be established by payment of taxes for seven years without other documentation (A.C.A. §18-11-102). For wild and unimproved property (such as a forest), the required period is fifteen years (A.C.A. §18-11-103). However, if the true owner has also been paying the ad valorem taxes, in either case, actual color of title is required by those statutes.

Payment of Taxes
Proving payment of ad valorem taxes may be difficult in some instances. The cases seem to say that inclusion of the claimed property (or contiguous property) in the claimant’s tax bill, preferably by metes and bounds or lot and block, is required.

The practical result of the added requirements varies according to the way the tax bill is written as to the property in question. In the typical case in which the properties are lots in a platted subdivision with descriptions by lot and block, the claimant’s tax bill simply may not include an encroachment onto a neighboring lot without modification of the tax bill, or perhaps presenting the plat along with the bill, which could disqualify the claimant’s claim if the contiguity requirements were not included in the statute.

For unplatted acreage, with the property described by metes and bounds, the claimant must show, typically by a survey, that her tax bill description includes the property encroached upon (or contiguous property) and that the true owner’s tax bill description does not. If the property claimed is not subject to taxation (such as church property), then actual or constructive possession and actual color of title of the claimed property (or contiguous property) are required to take advantage of the concept.

If the required seven-year period was met prior to the effective date of the 1995 statute, only the common law requirements are applicable.

Conclusion
According to common law in Arkansas, title to real property could be changed by adverse possession if that possession were open, notorious, exclusive, continuous (for seven years), and intentional. In addition to these common law requirements, Arkansas claimants now must also hold apparent title to the property claimed and pay taxes on the property claimed, or do so as to contiguous property, for seven years.

This means that lot line encroachments in a typical subdivision can usually result in a finding of forfeiture by reason of adverse possession. The requirements applicable to tax-exempt properties, acreage, and wilderness are a little different, but they retain the central statutory requirements relating to contiguity, color of title, and payment of ad valorem taxes.

Arguably, the addition of the statutory requirements as to color of title and payment of taxes will have very little impact on the usefulness of the concept of adverse possession as a means of settling potential claims occasioned by lot line encroachments in platted subdivisions. The severity of those requirements should be mitigated by use of the contiguity exception. Further, those requirements would appear to be effective in preventing perceived abuses by squatters without at least some color of title, and payment of taxes.

In other contexts, such as cases involving rural fence encroachments or ambiguous tax bill legal descriptions, the benefits of the concept in setting boundary line disputes may be curtailed or at least require more detailed surveys.

For additional information:
“Adverse Possession.” Cornell Law School. https://www.law.cornell.edu/wex/adverse_possession (accessed August 22, 2023).

Egan, Margaret A. “Annual Survey of Caselaw: Property Law.” University of Arkansas at Little Rock Law Review 24 (Summer 2002): 1071–1075.

Foster, Lynn, and J. Cliff McKinney II. “Adverse Possession and Boundary by Acquiescence in Arkansas: Some Suggestions for Reform.” University of Arkansas at Little Rock Law Review 33 (2011): 199–263.

Raley, Shane P. “Color of Title and Payment of Taxes: The New Requirements Under Arkansas Adverse Possession Law.” Arkansas Law Review 50 (1997): 489–520.

Sluyter, Kristen A. “Survey of Legislation: 2005 Arkansas General Assembly: Property Law.” University of Arkansas at Little Rock Law Review 28 (Winter 2006): 385–388.

W. Christopher Barrier
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.