Jun 22, 2023

What is Adverse Possession?

by Godrej Properties Limited



Sometimes a property owner can lose his claim to his property to another party who has intentionally or unintentionally occupied the property for at least 12 years. Such a situation brings into effect the legal principle called ‘adverse possession’. Let’s look at what the adverse possession law implies and the general adverse possession elements that typically need to be met to claim adverse possession of a property

Adverse Possession Meaning

As per Article 65 of the Limitation Act, 1963 if the actual property owner fails to evict the illegal tenant from the property within a stipulated time period then the illegal tenant can claim ownership of the property. In the case of private property, the specified time period is 12 years. Colloquially, adverse possession is also referred to as homesteading or ‘squatter’s rights’.

However, there are certain conditions under which adverse possession under the Limitation Act cannot be claimed. These are:

  • If the legal owner is of unsound mind
  • If the legal owner is less than 18 years
  • If the legal owner is serving in the armed forces

Requirements for Adverse Possession

Under the doctrine of adverse possession, there are some general elements that need to be met in order to claim adverse possession of real estate or immovable property. These are

Hostile Possession: If the claimant can show that no rent or lease agreement existed between him and the owner while he occupied the property for 12 years, then he can claim ownership of the property.

Actual Possession: To claim actual adverse possession of land the tenant must have physically occupied the property such as built a home or some structure on the land, or grown crops on the land during the 12 years. Simple verbal claims are insufficient.

Open Possession: Under this requirement, the claimant’s possession of the property must be open and obvious to the actual owner. Any attempts to conceal occupation invalidate the claim. However, it is not necessary that the owner should be aware of the open possession.

Continuous Possession: Uninterrupted or continuous possession of the property for 12 years allows the tenant to claim ownership rights. Similarly, if the owner has been away from the property for 12 years, the tenant can claim possession.

Exclusive Possession: The claimant can show exclusive possession by making specific changes or improvements to the property or developing the land during the 12 years. After this statutory period, the claimant can acquire legal possession of the property.

Adverse possession doesn't necessarily require malice on the claimant’s part. However, owners should be vigilant of their property and protect it against such practices.


Frequently Asked Questions

1. When can the landlord or owner appeal against adverse possession?

Answer: The landlord or owner must appeal to the court within the statutory 12-year period to regain the property.

2. Does the property owner receive money under adverse possession?

Answer: If the tenant or claimant can prove successful adverse possession he doesn’t need to pay the owner.

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