Adverse Possession in DC

What is Adverse Possession?

“‘Adverse possession’ functions as a method of transferring interests in land without the consent of the prior owner, and even in spite of the dissent of such owner. It rests upon social judgments that there should be a restricted duration for the assertion of ‘aging claims,’ that the elapse of a reasonable time should assure security to a person claiming to be an owner.” (See Smith v. Tippett (1990) 569 A.2d 1186, 1189-90; 7 R. POWELL, THE LAW OF REAL PROPERTY § 1012(2) at 91-4 (Rev. ed. 1989).)

“The theory upon which adverse possession rests is that the adverse possessor may acquire title at such time as an action in ejectment by that record owner would be barred by the statute of limitations.” (See id.)

Rules for Establishing Title by Adverse Possession

“To establish title by adverse possession, a claimant must demonstrate actual, open and notorious, exclusive, continuous, and hostile possession of the premises for the prescribed statutory period under a claim of right or title.” (See Smith v. Tippett (1990) 569 A.2d 1186, 1190; Reid v. Anderson (1898) 13 App.D.C. 30, 36.)

“It is undisputed that an easement is a property right which may be extinguished by adverse possession.” (See id.)

Burden of Proof to Establish a Claim by Adverse Possession

“Because courts presume that one who occupies the land of another does so with the latter's consent, the party seeking to establish a claim by adverse possession has the burden of doing so "by clear and convincing evidence.” (See Sears v. Catholic Archdiocese of Washington (2010) 5 A.3d 653, 658; Smith v. Tippett (1990) 569 A.2d 1186, 1190; Chaconas v. Meyers (1983) 465 A.2d 379, 382 [Hence, where a claimant relies upon a presumption of adverse use, the landowner may rebut that presumption with contrary evidence of permissive user, either express or implied].)

“There is also a countervailing presumption, that possession is adverse whenever there is open and continuous use of another's land for the statutory period . . . in the absence of evidence to the contrary.” (See id.)

Standard of Review in Deciding a Prescriptive Easement

“Summary judgment is appropriate only when there are no material facts in issue and when it is clear that the moving party is entitled to judgment as a matter of law.” (See HAN v. SOUTHEAST ACADEMY OF SCHOLAS. EXCEL. (2011) 32 A.3d 413, 416; Jones v. Thompson (2008) 953 A.2d 1121, 1124.)

“Summary judgment is a question of law, which this court reviews de novo. In doing so, we view the record in the light most favorable to the non-moving party, but mere conclusory allegations are insufficient to avoid entry of summary judgment. Rather, there must be evidence on which the jury could reasonably find for the non-moving party.” (See id.)

“A prescriptive easement is created through one's open, notorious, exclusive, continuous and adverse ... [use] for the statutory period of fifteen years.” (See id; Chaconas v. Meyers (1983) 465 A.2d 379, 381.)

Establishing Adversity, Hostility, and Exclusiveness

“Courts presume that one who occupies the land of another does so with the latter's consent, and adversity must be established by clear and convincing evidence.” (See Smith v. Tippett (1990) 569 A.2d 1186, 1190; Boese v. Crane (1958) 182 Kan. 777, 324 P.2d 188, 193-94.)

“They also indulge a presumption, however, that possession is adverse whenever there is open and continuous use of another's land for the statutory period, and this presumption is effective to establish title in the absence of evidence to the contrary.” (See id; Gary v. Dane (1969) 133 U.S.App.D.C. 397, 399, 411 F.2d 711, 713; see also Kogod v. Cogito (1952) 91 U.S.App.D.C. 284, 286, 200 F.2d 743, 745.)

“‘Exclusive’ possession, for the purpose of establishing adversity, means that the claimant holds possession of the property for himself as his own and not for another. If a claimant's possession meets these criteria, his possession need not be absolutely exclusive.” (See id.)

“A general statement of the element of exclusivity is that the adverse claimant's possession cannot be shared with the true owner. Possession is exclusive if it is of a type that would be expected of a true owner of the land in question.” (See id; Crites v. Koch (1987) 49 Wn. App. 171, 175, 741 P.2d 1005, 1008.)

“In order to establish adverse possession, the possession must be openly hostile. ‘Hostile’ possession has been defined as possession that is opposed and antagonistic to all other claims, and which conveys the clear message that the possessor intends to possess the land as his own. It is not necessary that he intend to take away from the owner something which he knows to belong to another or even that he be indifferent concerning the legal title. It is the intent to possess, and not the intent to take irrespective of his right, which governs.” (See id.)