Contents:
1. What is Adverse Possession?
2. The Elements and Common Defenses
3. Its application in Land Law today
What is Adverse Possession?
In
its most basic sense, “adverse possession” is a legal doctrine that
allows a person to acquire legal ownership of property that he treats as his own, if he does so for a long enough period of time, even though the property is not his
own. In other words, a person who uses another person’s property,
without permission, for a long enough period of time, can acquire legal
ownership of that property. As an example, if a fence
separates two properties — Parcel A and Parcel B — but does not run
along the actual property line, a portion of Parcel B might be
located on Parcel A’s side of the fence.
If
the owner of Parcel A mows and tends to all areas of his property right
up to the fence (and is therefore maintaining parts of Parcel B), and
does so for the requisite length of time, the owner of Parcel A might be
able to acquire legal title to that portion of Parcel B that he has
maintained.
Most
people are familiar with statutes of limitation. A statute of
limitation sets forth a time period within which one must sue to enforce
a right, failing which the person loses the right to sue. The statute
of limitation for a trespass action in Washington is ten (10) years.
If an owner allows another person to continue trespassing on his
property and does nothing about it for ten years, the trespasser can
acquire legal title to the complacent owner’s land. Thus, adverse
possession is nothing more than a statute of limitation for bringing a
trespass action. After ten years of trespassing, the trespasser can
go to court to seek a declaration that the owner has allowed the
statute of limitation to pass, and that the claimant has therefore
acquired title to that property.
The Elements of Adverse Possession
A
person claiming title to land by adverse possession (I shall refer to
such a person as the “claimant”) must prove four basic elements. The
claimant must show that she or he used property belonging to another in a
way that was (1) open and notorious, (2) actual and uninterrupted, (3)
exclusive, and (4) hostile.[1]
Possession (i.e. use) of the property that includes each of the necessary elements must exist for ten years,[2] following
which the claimant can go to court and acquire legal title to the
property. As stated above, adverse possession is merely a statute of
limitation for trespass. Thus, if the title owner of land has
knowledge that another person is using his land openly and without his
permission, he can sue that person for trespass. However, if the title
owner allows the trespass to continue for ten years, he loses his right
to sue the claimant. Each of the four elements stated above exists
to protect the diligent owner, and also to reward those who productively
use land.
Sneaking
onto another’s property in the dead of night and ‘using the property’
until the break of dawn is not “open and notorious,” because the true
owner would not reasonably be aware of the clandestine use of his
property. For this reason, such surreptitious use of another’s land
will never ripen into an adverse possession claim no matter how long it
goes on.
Likewise,
using another’s property openly and exclusively for one year, but then
vacating for some period of time, then occupying it for another year,
then vacating (and so on) is not “actual and uninterrupted.” Thus,
even if such intermittent use continues over the course of fifty years
such that cumulatively the land has been used and occupied for
ten years, such use would not give rise to an adverse possession claim,
since the claimant would be unable to establish an uninterrupted use.
The requirement that the claimant use the land “exclusively” protects a title owner of land who decides to let everyone use his property.
Finally,
the “hostile” element does not have the normal definition of ‘hostile;’
it does not mean enmity or ill will. Rather, ‘hostile’ in the adverse
possession context merely means ‘without the owner’s permission.’
Thus, a landowner can explicitly give his permission to allow another to
use his land for 100 years and not be subject to a claim of adverse
possession. Think of a landlord who rents to a tenant for more than
ten years: the tenant is there pursuant to an agreement with the
owner, and does not adversely possess the property.
Common Defenses
Like
all legal doctrines, there are exceptions to the general rules
regarding adverse possession, as well as several defenses. For
example, public land can never be adversely possessed. Open,
continuous, exclusive and non-permissive use of land, where the land is
owned by the city, county or state, cannot form the basis of an adverse
possession claim.
Most
“defenses” to an adverse possession claim involve simply proving the
non-existence of one or more of the required elements. The word
‘defense’ in the preceding sentence is put in quotation marks because
asserting that a statute of limitation bars the action, or that
another element necessary to an adverse possession claim is absent, is
itself generally considered a defense. Since adverse possession is
itself essentially the assertion of a statute of limitation defense to a
trespass action, labeling efforts to resist such an assertion a
“defense” seemingly puts the terms “claim” and “defense” on their heads.
“Neighborly
accommodation” is one of the most common defenses to an adverse
possession claim when dealing with developed residential property.
Suppose two houses share a common boundary comprised of a lawn, with no
fence separating the two properties. Allowing your neighbor to walk
on, use, or maintain portions of your property may merely be a
neighborly accommodation on your part. Obviously, it would make bad
public policy to require neighbors to constantly insist upon asserting
their property rights vis-Ã -vis their neighbor, and accordingly the
“neighborly accommodation” defense arose to lessen the tension between
encouraging the productive use of land, on the one hand, and avoiding
neighbor-on-neighbor acrimony, on the other.
For
example, suppose “Bill” and “John” own the neighboring properties
described above (sharing a common boundary comprised of a lawn, with no
fence separating the two parcels). Suppose Bill routinely mows the
front lawn, including portions of the lawn on John’s side of the
property line. Suppose also that throughout the year, Bill sits on
lawn chairs placed in the vicinity of the boundary line, occasionally
setting up his chair on John’s side of the line, and occasionally on his
own side of the line. The neighborly accommodation defense would
protect John from losing part of his property were Bill to bring a claim
for adverse possession. Bill might be able to prove that he openly,
continuously, and exclusively used portions of John’s property and never
once sought or received permission from John. John, however, could
defend against such a claim by demonstrating that he was merely
extending a neighborly accommodation by not protesting Bill’s use of the
property or suing Bill for trespass. The ‘neighborly accommodation’
defense has its limits, such as where Bill unilaterally decides to build
a fence between the two properties, does not consult with John prior to
erecting the fence, and it is later determined that the fence
encroaches upon John’s property. Generally, however, courts have
stuck to the rule that true owners often do (and should) permit third
persons to use their property on an occasional, transitory manner, and
that not all use is adverse in this sense.
Some
defenses, while common, apply only to certain types of land. The
so-called “vacant land doctrine” applies (as its name suggests) to open,
vacant, undeveloped land. The vacant land doctrine applies a presumption that
the use of vacant, undeveloped land is done with the permission of the
owner. If that presumption applies, the claimant must then put forth
evidence to rebut that presumption. In such cases, use which might
have been sufficient to establish adverse possession if done on
developed property is insufficient when done on vacant land.
One
of the most common circumstances giving rise to adverse possession
claims occurs when the owner (who I shall call “Owner A”) of property
obtains a survey (usually for some reason other than in connection with a
boundary dispute), and the survey reveals a disparity between the
legal/surveyed property line and a boundary fence. Owner A realizes
that the fence separating his property from his neighbor’s property — a
fence that was present when Owner A bought the property and which Owner A
always assumed marked the true legal boundary — is five feet closer to
Owner A’s house than the true property line. Owner A understandably
asks: “Can I move the fence so that it coincides with the surveyed/legal
property line, since that will give me five more feet of yard running
the entire length of the fence?” Unfortunately, the answer to that
question is “It depends.”
Adverse
possession cases often proceed to trial (rather than being resolved
based on a summary judgment motion or other pre-trial disposition)
precisely because the questions are so fact-specific. Often, one or
both of the parties has not personally owned the property for the
entire ten year period, in which case it is necessary to investigate how
the prior owner(s) used the property, and whether there were any
explicit agreements between the prior owners (generally, the prior
owner’s use “counts” toward the current owner’s claim).
Discussion
The Limitation of Actions Act is one of those small-sized statutes in our laws which advocates can ignore only at their peril. In contrast, the Kenyan law of land is spread over a whole gamut of statutes, with elaborate provisions and different regimes that leave all but the seasoned legal practitioner irredeemably baffled.
Adverse possession has been defined to mean "possession inconsistent with the title of the owner. But not for instance possession under licence from the owner or by way of trust on his behalf. There must be denial of the owner's title in one form or another for possession to be adverse." (Mutiso v Mutiso 2001).
In the 1980's, the primary use of adverse possession was by the equitable purchaser without legal title in land. In Public Trustee v Wanduru (1984) the purchaser of land had failed to obtain title before bringing the suit for adverse possession. Madan JA gave the leading judgement and held that the purchaser's widow had been in continuous open exclusive and uninterrupted adverse possession of the land since the moment of sale and not 3 months later when failure of Land Control Board consent made the sale void for all purposes. He held, "Provisions of the Land Control Act have no application where the claim to title of agricultural land is by operation of law, such as by adverse possession. It is not an agreement, a transaction or a dealing in agricultural land."
Kneller JA concurred but went further, in reliance on some Indian authorities, to hold that not even persistence in a suit for possession or a decree establishing the owner's right without successful execution would disturb the occupier's adverse possession.
Several years later, the courts in Kiritu v Kabura (1993) and Murathe v Gathimbi (1998) decisively rejected this ratio. Kwach, JA led the court in upholding the ratio of Potter JA in Githu v Ndeete that the filing of a suit for possession prevents time from running. In Murathe the court went on to say, in contrast to Wanduru, that the claim for adverse possession in the suit land could only have begun from the time when the statutory period for obtaining Land Control Board consent lapsed and the agreement became void.
Wamukota v Donati (1987) involved once again an agreement to sell that had become void for all purposes, both equitable and legal, after failure by the vendor to obtain Land Control Board consent. The vendor had subsequently sold the land to a third party, who colluded with him to defeat the occupier. Since the period of adverse possession had not fully accrued, the case had to be decided on the basis of whether equity could allow statute to be used as an engine of fraud.
Apaloo JA conceded that this view had been implicitly rejected by the Court of Appeal in Rioki Estates Ltd v Njoroge (1977). He however doubted the Land Control Act as judicially construed and applied. "I have, I hope, given full expression to the difficulty I feel about the conclusion to which we have come... I concur in the result reached with no relish, and with far less confidence than my brothers." Here revealed was the painful judicial ascent to the pinnacle of doubt in Kenyan land law.
In Kungu v Thige (1989), the wife claimed adverse possession against her husband. The court rejected her claim on the ground that her possession had not been continuous so as to defeat the interest of a bona fide purchaser under the power of sale. It is surprising that the court did not assert the pre-eminence of the legal chargee's right to the right of an adverse possessor in relation to registered land.
The question of when adverse possession starts against a person entitled to registration was dealt with in Lusenaka v Omocha (1994). Title to the land was in the name of "Settlement Fund Trustees" until 1987 when it was transferred to the original allottee and sold to a third party. The plaintiff had 'purchased' the land in 1964 and moved into possession. The main question was whether adverse possession could run against the SFT, and alternatively whether the original allottee prior to his registration had sufficient title that could be defeated by a claim for adverse possession.
Under the Agriculture Act, no suit by the SFT would be defeated only on the ground of any law of limitation. The question was therefore if any adverse possession could accrue against a person whose ownership of land was unregistered and subject to SFT rights. The court side-stepped the question and held, "[the original allottee] had sufficient title in the land against which the respondent could acquire prescriptive rights through adverse possession."
Contrastingly in Ali v A.G. (1997) the Court of Appeal was to say, "Adverse possession can only be claimed against a properly registered owner, that is to say, possession must be adverse to that of the registered proprietor." In that case, the court rejected the claim and observed grimly, "This appeal has caused us a lot of heartache. Whilst we fully sympathise with Mr Hamisi Ali we cannot and would not overrule the learned judge. We would only express the pious hope that the Commissioner would deem it fit to allocate him some other land elsewhere."
Also in Kaara v Kaara (1997) the court held that the claimant had not acquired title to land by adverse possession because he was on the land with the father's consent, and he had subsequently consented to the division of the land in a succession cause. The court observed, "the limitation. period does not start running unless the land is in the possession of some interest in it hostile to that of the owner thereof. Possession is hostile if it is open, without right, without force or fraud, and exclusive." The bench in Mutiso v Mutiso (2001) would later uphold a preliminary objection and dismiss a suit for adverse possession on the ground that the claimant had pleaded "open and quiet occupation and use of the. land with the full knowledge and consent both of the respondent and his predecessor in title."
In Mbogo v Ngugi (1997) it was the father who was claiming adverse possession against his son. On the question of whether earlier proceedings by the adverse possessor in respect of the land interrupted the accrual of time the court held: "Limitation is a defence by a person in possession of land adversely to the owner's rights. It is the owner of the land who is obliged to take reasonable steps to re-enter his land. This he can do by use of peaceful means or by instituting action to exert his rights over the land."
The 1999 case of Wabala v Okumu is authority for the proposition that adverse possession must be actual, and not merely constructive. The defendant had acquired the land through an informal sale. He lived on the land between 1974 and 1979 after which he moved out of the suit land but continued cultivating it. His house even fell down but was not restored. The court held, "We think that it would not only be wrong but also dangerous to introduce the concept of constructive possession. As the lawyers of old used to say, the occupation must be nec vi, nec clem, nec precario."
An issue that has been animating the courts recently is the question of the procedure in a claim for adverse possession. In Ngethe v Gitau (1999) the court insisted that a claim for adverse possession must begin by originating summons. In Bayete Co. Ltd v Kosgei (1999) the court granted adverse possession to a land buying company against a holder of its shares who had subsequently sold out and abandoned the property but retained his share certificate. It is instructive that this particular suit was commenced by plaint and there was no specific plea of adverse possession. Just one month later in Ting'ang'a Ltd v Moki Savings (1999), two of the judges in Bayete held that a claim for adverse possession must always be made by Originating Summons, never by plaint, not even on account of fraud or complexity.
Yet in Wabala the claim for adverse possession originated as a defence in an action for eviction in the magistrate's court. The Court of Appeal did not comment adversely on the procedure used to agitate the issue. Earlier still in Lusenaka, the plaintiff brought two suits for adverse possession, one by plaint and one by originating summons. The two were consolidated by consent. The court observed, "A claim for adverse possession. must be brought by way of an originating summons... We take it that by conceding to the consolidation of the two suits, the appellants must have agreed to give up their right to object to the plaint filed in Kakamega case as being incompetent and that plaint was probably swallowed up in the originating summons."
Interestingly though, in Ngethe the court held, "the claim by way of adverse possession not having been brought by way of an originating summons. it cannot succeed. There appears to be no authority or provision for the reverse procedure, that is to say for an action begun by plaint (as this was) to be continued as an originating summons."
The lack of relish (Apaloo, JA), the heartaches, sympathy and pious hopes (Tunoi, Shah & Bosire, JJA) of our judges will continue forming the background tapestry to cases of adverse possession in Kenya. The principles of adverse possession will be further tortured and twisted in search of the ever-elusive equity in land title and distribution. In the process, one wonders whether, like a phoenix rising from the ashes, equity will resurrect its principles and become the supreme arbiter of land disputes in Kenya.
Conclusion
Adverse
Possession is, quite literally, a doctrine that legalizes the theft of
land under certain circumstances. It is a very unintuitive rule in
this sense.
However,
the elements of adverse possession, as well as the most common defenses
to it, along with the extraordinarily long period of time required to
establish the claim, together operate to deprive an owner of his
property only when the owner unreasonably sits on his rights for an
extended period of time.
Hopefully the foregoing article explains the basics of this doctrine.
[1] Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984).
[2] RCW 4.16.020.
Cases referred to Court citation LLR citation
1. Rioki Estates Ltd v Njoroge (1977) [1977] KLR 146
2. Public Trustee & anor v Wanduru (1984) C.A. 73/82 [1982] LLR 74 (CAK)
3. Wamukota v Donati (1987) C.A. 6/86 [1986] LLR (CAK)
4. Githu v Ndeete (ref in Murathe v Gathambi)
5. Kungu v Thige (1989) C.A. 20/88 [1988] LLR (CAK)
6. Kiritu v Kabura (1993) C.A. 20/93 (ref in Murathe v Gathambi)
7. Lusenaka v Omocha (1994) C.A. 134/93 [1993] LLR (CAK)
8. Ali v A.G. (1997) C.A. 125/97 [1997] LLR 578 (CAK)
9. Kaara v Kaara (1997) C.A. 79/96 [1996] LLR (CAK)
10. Mbogo v Ngugi (1997) C.A. 19/97 [1997] LLR (CAK)
11. Murathe v Gathimbi (1998) C.A. 49/96 [1996] LLR 433 (CAK)
12. Ngethe v Gitau (1999) C.A. 143/98 [1998] LLR 770 (CAK)
13. Wabala & Anor v Okumu (1999) C.A. 208/97 [1997] LLR 608 (CAK)
14. Bayete Co. Ltd v Kosgei (1999) C.A. 220/98 [1998] LLR 813 (CAK)
15. Ting'ang'a Ltd v Moki Savings (1999) C.A. 286/99 [1999] LLR 1092 (CAK)
16. Mutiso v Mutiso (2001) C.A. 161/98 [1998] LLR 3268 (CAK)
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