Adverse possession is a legal principle by which a trespasser may become the owner of someone else’s property by behaving as though the property belongs to him even though he is not the true owner. Many states have adverse possession laws, including Kentucky. While adverse possession may seem unfair, the hurdles to proving ownership are not easy to leap. Adverse possession laws, or squatters’ rights, in Kentucky require strict proof of certain elements before ownership will pass.
What Is Adverse Possession?
Adverse possession is a legal concept whereby someone can become the legal owner of real estate that belongs to someone else. A trespasser or squatter who meets all the requirements under the law could take title to land right out from under the actual owner. Every U.S. state allows adverse possession in some form, although the requirements differ from state to state.
Read More: How to Take Property by Adverse Possession
Adverse Possession in the United States
Adverse possession laws in the U.S., like much of United States law, are based on English common law. During feudal times, written land records were often unreliable, and in a world where everything was technically owned by the Crown, individual rights to property were best determined by whom actually lived on or used the land.
Ownership by adverse possession is rare and difficult to come by. The idea that a trespasser can obtain title to someone else’s property simply by the act of trespassing is an idea that shocks the conscience, so in modern times, states enacted laws on adverse possession that do not make it easy.
Adverse Possession in Kentucky
Kentucky’s adverse possession law follows the general common law principles of adverse possession. To acquire title to Kentucky property by adverse possession, the trespasser’s possession of the property must be:
- Open and notorious.
- Continuous for the statutory period.
Essentially, the trespasser must behave as though the property has belonged to him for a certain period of time. This isn’t as simple as it sounds, however.
Requirement of Actual Possession
Kentucky law requires at the outset that the trespasser’s possession of the property be actual possession. This means the trespasser must enter the property and exert dominion over it. This could be achieved by building a structure or paving a road. Like all the requirements, “actual possession” is fact-specific.
Hostile to the True Owner
The possession must be hostile. That doesn’t mean the trespasser must wage war; it simply means the trespasser cannot have permission to be there. A renter cannot take title by adverse possession, because the possession is permissive. If the owner knows someone is using the land and affirmatively assents to the use, the use is not hostile, and adverse possession cannot take place.
For example, if Tina Trespasser decides to try to take Oliver Owner’s land by adverse possession and paves a road across the middle to assert her interest, but Oliver sends her a letter telling her she’s free to use the property and thanking her for the road, her possession is no longer considered hostile.
Exclusive Possession of Property
After showing that possession was actual and hostile, the trespasser must show that his possession was exclusive. He cannot share possession with the public or even with the true owner. Kentucky law does allow someone to take ownership of only a part of a property by adverse possession, though, if the owner uses one part and the trespasser uses another. However, whether a court will grant title in this situation depends upon the particular facts of the case.
For instance, Tina paves the road on Oliver’s property to stake her claim. If Oliver sees the road and begins driving on the road to use the property, Tina’s possession is no longer exclusive, and she cannot take title by adverse possession.
Open and Notorious Possession
For possession to be open and notorious, the trespasser must use the property in a way that is not hidden from the owner and that shows unequivocally that the trespasser intends to have dominion over the property. Constructing a building is likely to meet this standard, as is engaging in “substantial activity.” The use must not be secretive; instead, it must be obvious to an owner paying attention that someone else is occupying the property.
Continuous for 15 Years
The statutory period in Kentucky is 15 years under K.R.S. 413.010 (8). The adverse possessor must meet all the other requirements (actual, hostile, exclusive, open and notorious) for a period of 15 years before he can try to make an adverse possession claim. If the owner takes action prior to the expiration of 15 years to disrupt any of these requirements, such as a grant of permission or the filing of an ejectment action, the clock stops, and adverse possession cannot be found.
If Tina enters Oliver’s property in 2020 and meets the requirements of actual, hostile, exclusive, open and notorious use until 2034, she may think she’s in the clear. But if Oliver sends her that polite letter giving her permission to use the property, her adverse possession attempt is over. Her use is no longer hostile. This is true even though she almost made it to 15 years. The statutory period is not flexible in that sense.
However, the statutory period is reduced to seven years if the trespasser claims to have color of title.
Possession Under Color of Title: 7 Years
“Color of title” is a concept whereby someone claims to have actual legal title to a property, but the title is defective. For instance, if someone has a deed to property, but the property description is incorrect so that the ownership is only of a portion of the land, the owner may claim ownership of the rest of the land by color of title.
If a person claims adverse possession under a color of title, the statutory period is only seven years rather than 15 years. If Tina Trespasser uses Oliver Owner’s property in an actual, hostile, exclusive, continuous, open and notorious manner because she has a deed saying she’s the true owner, she may be able to file an action to obtain legal ownership after only seven years.
Obtaining Legal Ownership: Action to Quiet Title
Once a trespasser has completed all the requirements of adverse possession, the final step in obtaining legal title is to file a quiet title action in the circuit court of the county where the property is situated. The action will need to be served upon the true owner of the property, who will have the opportunity to respond and dispute the action. The court will weigh the evidence, and if it finds that all the requirements were met, a judgment will be entered showing the trespasser as the true, legal owner.
If Tina meets all the requirements for adverse possession and meets them for the entire 15-year period, she must file a lawsuit against Oliver with the appropriate court and serve him with a suit as required by law. She’ll need to provide evidence that her possession was actual, hostile, exclusive, open and notorious, and continuous for the entire 15 years. Oliver will have the opportunity to present evidence to the contrary, and it will be up to the court to decide.
To acquire title to real estate by adverse possession in Kentucky, the person seeking title must file a quiet title action in the appropriate county and show that possession has been actual, hostile, exclusive, open and notorious, and continuous for at least 15 years.
- Kerrick Bachert: Kentucky’s Adverse Possession Law
- FindLaw: Kentucky Adverse Possession Laws
- Nolo: Who Can Claim Property Based on Adverse Possession in Kentucky?
- Cornell University Law School Legal Information Institute: Adverse Possession
- Casetext: Ky. Rev. Stat. § 411.120
- Finney Law Firm: Advanced Commercial Real Estate Law: Adverse Possession and Prescriptive Easements in Ohio and Kentucky
- Racine Olson: The Strange Doctrine of Adverse Possession and its Origins
- iPropertyManagement: Squatter's Rights in Kentucky
Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.