What is adverse possession?

According to the legal definition of adverse possession, a person who has lived on a piece of land without a title for 12 years with the owner’s consent could be able to claim ownership of the land in question. Article 65 of the Limitation Act lays forth the principles underlying the notion of adverse possession.

The Supreme Court gave a landmark ruling involving adverse possession in the Amarendra Pratap Singh versus Tej Bahadur Prajapati case. It is a situation in which the real owner of a piece of property loses their ownership rights as a result of their failure to remove a trespasser from the property within a set period.

Also know all about release deed

Example of adverse possession 

For example, if X, the landowner, assigns his property to Y for the purpose of maintenance, and X returns after 12 years to recover the property, the court will not judge the lawsuit in X’s favour.   

There are two types of adverse possession:

• Adverse from the beginning, or
• The possession becomes adverse afterwards

See also: How to calculate stamp duty?

Time limits for adverse possession 

In the case of a private residence, the allotted time frame is 12 years long. However, the government, state, or public land or property has a 30-year time limit. Once the trespasser or the tortfeasor breaches upon or damages the property of the real owner, the allotted time frame begins to run.

When calculating the statutory time, it is important to keep in mind that in certain circumstances, the case is stopped or postponed. Some of the examples are:  

• Legal proceedings between the real owner and their legal guardian.
• Circumstances in which the true owner is either under 18 years of age or of unsound mind.
• Owner serving in the armed forces.

Also read: What is relinquishment deed

Can a tenant claim adverse possession?

If a renter seeks to claim ownership of a property via adverse possession, they must meet the following requirements:

Actual possession

In this scenario, the tenant must take action to reclaim the property as his own to be successful. There must have been occurrences in which the tenant exercised jurisdiction over the land in his or her capacity as the owner. 

See also: All about rectification deed

Continuous

The original owner must have been away for at least 12 years for the renter to claim ownership rights. If the renter has been in charge of the property for 12 years without the original owner’s presence, and the property has not been dispersed during this time, the tenant gets complete control over the property.

See also: Police verification for rent agreement: is it must?

Exclusive

The tenant is required to have made specific improvements, additions, and other changes to the property. This further establishes the tenant’s exclusive title to the property and provides them with the legal authority to assert a claim to property ownership.

Open

For this condition to be met, the tenant must demonstrate to third parties that they have lived on the property for at least 12 years. A few ways to achieve this include establishing a property line, adding extensions and renovations, and maintaining excellent relations with the property’s neighbours. The importance of interacting with your neighbours cannot be overstated.

Hostile

Tenants in this situation are obligated to seize the existing owner’s rights. Tenants may claim ownership of a property if the title deed is defective by asserting that the agreement is unlawful. If, upon the termination of the agreement, the tenant continues to reside on the property for 12 years, or if the owner does not take any action to regain ownership rights, the agreement is considered dissolved. In such circumstances, the tenant is given a reasonable opportunity to assert ownership of the property.

See also: All about gift deed

When can an adverse possession not be claimed?

Many high courts, including the Supreme Court, have ruled that determining an adverse title of possession is not only a legal problem but also a factual one. The case must be resolved solely on the evidence presented by the participants. Without proof, claims are not sufficient. There should be evidence of open, continuous, and hostile possession included in the document as well. Adverse possession claims cannot be upheld in the cases listed below:

Permissive possession 

A permissive possession cannot be transformed into an adverse possession, particularly if the possession has been permissive from the beginning. With or without direct proof, it is possible to conclude that possession is permissive based on the surrounding circumstances. 

When the landlord expresses the desire that permissive possession is terminated, the permissive possessor is required to cease entering the property; if he fails to do so, his continued entry into the property will be deemed wrongful, and he will be liable to surrender possession along with any profits earned from the property.

Lack of animosity or purpose

When claiming exclusive ownership, it is necessary to demonstrate the animus possidendi (intent to possess) by how the property is occupied, and this is dependent on the nature of the property. Because of the fiduciary connection that exists between the parties, it is generally established that the agent has the principle in their possession.

Absence of a legally valid claim

In Palaniyandi Malavarayan v. Dadamalali Vidayan, it was argued before the Andhra Pradesh High Court that the right to the trusteeship of a temple cannot be obtained by adverse possession as long as there is no lawful trustee who can allege to recover the office from the person who claims to hold it adversely to him.

Anyone asserting adverse possession must establish the following:

• When was the possession acquired?
• How did they get it?
• Whether or not the owner was aware of the possession?
• How long have they retained possession?

 

Latest court rulings on adverse possession

Adverse possession no ground to claim title to govt land: SC

Adverse possession can’t be a ground to claim title of government land, the Supreme Court (SC) has ruled. For the uninitiated, adverse possession is a situation in which the actual owner of a property loses their ownership rights as a result of their failure to remove a trespasser from the property within a set period.

While passing its judgment in a case pertaining to demolition of unauthorised properties in Lucknow’s Akbar Nagar, the apex court also said that the length of time spent by the residents on the land was not sufficient ground to claim permanent title of government land.

Person claiming adverse possession must know the actual owner: Supreme Court

March 18, 2024: A person claiming adverse possession of a property must know its actual owner, the Supreme Court has ruled.  While delivering its order in the M Radheshyamlal versus V Sandhya and Anr. Etc case, a two-Judge Bench of Justice Abhay S Oka and Justice Ujjal Bhuyan also stated that to prove an adverse possession, a person must establish when they came into possession, and plead and prove that they were claiming possession adverse to the true owner, that their long and continuous possession was known to the true owner and that their possession was open and undisturbed.

The apex court was deliberating on a series of appeals stemming from three distinct lawsuits concerning a property dispute.

“It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff,” the top court said in its order dated March 18, 2024.

State can acquire land through adverse possession: HC

May 18, 2023: State can acquire land using means other than the recognised mediums of ownership transfer, the Punjab & Haryana High Court has ruled. It, however, said that such cases were required to be treated as rare and exceptional. The observation of the court came while hearing several appeals by the erstwhile Punjab State Electricity Board.

Read full coverage here.