October 20, 2020

The doctrine of adverse possession is one of the most ancient in America’s legal tradition. Adverse possession has been a part of Kentucky law since the birth of the state in 1792, through our state constitution’s adoption of then-existing Virginia law.[1] Despite the length of time, the doctrine has never ceased to be a source of confusion and misunderstanding.

At its core, adverse possession is fairly straightforward. It is defined as the acquisition of ownership in someone else’s land through possession, after a defined period of time passes.[2] A common example involves a property owner who mistakenly builds a fence through the land of a neighbor. If, after several years, the mistake is discovered when either the property owner or his neighbor surveys the land, the property owner has likely gained ownership of the neighbor’s land that is enclosed by the fence.

Adverse possession cases are rarely as clear-cut as the above example, however. Often the relationship between the two property owners and how the property owners interacted with the land forms a tangled web that courts must painstakingly unravel to determine the real estate’s true owner. Over the years courts have crafted a more detailed test to help them weigh the facts. When courts apply the test to sets of facts, the result is often lengthy and difficult to understand. This article’s purpose is to, hopefully, demystify that process by breaking down the test.

Because the doctrine of adverse possession is so old, numerous tests have been formulated over the years by the many courts who have considered its application. Kentucky’s test contains five criteria that must be met to claim land through adverse possession:

1) possession must be hostile and under a claim of right,

2) it must be actual,

3) it must be exclusive,

4) it must be continuous, and

5) it must be open and notorious[3]

The first requirement—that possession must be hostile and under a claim of right—on its face suggests that animosity toward the actual owner of the property is required. As with many legal terms, while the common understanding of the word may be helpful, it does not control the legal definition. The conclusions of a long line of cases about this requirement can largely be distilled into this: the adverse possessor must be doing so without the permission of the property owner.[4] Doing so in a manner from which it is clear that the adverse possessor does not recognize the right of the true owner satisfies this requirement.

The second requirement is that the adverse possession be “actual.” In Kentucky, this requirement means that the adverse possessor must use the property in a way that clearly indicates an intent to exert control, or “dominion” as one prominent case calls it.[5] In doing so, it must be clear to the actual owner that the possessor intended to exclude them from using the property.[6] Merely marking a boundary, or as one case humorously put it, “simply mentally extending” your property line, is not enough to satisfy this requirement.[7]

The third requirement is that the adverse possession be “exclusive.” This does not mean that the possessor is quite literally the only individual to be on the property for the duration of the adverse possession. To satisfy this requirement, the possessor need only not share the land with the actual owner.[8] This requirement is not absolute, so occasional or brief use of the property by the actual owner will not prevent this requirement from being met.[9]

The fourth requirement is that adverse possession be “continuous.” For adverse possession to be continuous, it must be characterized by uninterrupted use of the land for the legally required 15 years.[10] This is not a literal requirement. The adverse possessor need not be present at all times throughout the period of possession, nor do they need to live on the land.[11] The law only requires that the possessor use the land in way that clearly communicates their control over the land.[12] Moreover, the interruption must be significant to restart the clock. Brief and ordinary absences will not destroy continuity.[13]

The final requirement is that adverse possession must be “open and notorious.” To satisfy this requirement, there must be evidence on the property that would make an observer aware of the possession.[14] This evidence puts the owner “on notice” of the adverse possession.[15] It is important to note that the owner need not be actually aware of the possession. This element only requires that the owner would be aware if they viewed the property.[16] Courts have held that the erection of fences, houses, and other structures satisfies this criteria.[17]

If each of these five requirements is met, an adverse possessor should be able to claim ownership of the land. This analysis does not stand alone, however. There are other factors, defenses, and details that must be examined beyond the analysis above—it is the starting point, rather than a conclusive determination. Nonetheless, the forgoing should be helpful to anyone who thinks they might be on either side of the fence in an adverse possession claim.

[1] Ky. Const. § 233; See Moore v. Stills, 307 S.W.3d 71, 79 (Ky. 2010).

[2] 142 Am. Jur. Proof of Facts 3d 349.

[3] Moore v. Stills, 307 S.W.3d 71, 77 (Ky. 2010).

[4] 142 Am. Jur. Proof of Facts 3d 349. See Sweeten v. Sartin, 256 S.W.2d 524, 526 (Ky. 1953).

[5] Moore v. Stills, 307 S.W.3d 71, 78 (Ky. 2010).

[6] Id.

[7] Moore v. Stills, 307 S.W.3d 71, 78 (Ky. 2010).

[8] Elements—Exclusive, 3A Ky. Prac. Real Estate Transactions § 19:5.

[9] Lyle v. Holman, 238 S.W.2d 157 (Ky. 1951).

[10] Elements—Continuous, 3A Ky. Prac. Real Estate Transactions § 19:6; Ky. Rev. Stat. Ann. § 413.010.

[11] Thompson v. Ratcliff, 245 S.W.2d 592, 593 (Ky. 1952).

[12] Thompson v. Ratcliff, 245 S.W.2d 592, 593 (Ky. 1952).