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在土地所有权上, 有个法律行为叫 ADVERSE POSSESSION. 如果邻居长期占用自己的土地, 他可能合法的永久拥有. 所以如果买了许多房产的投资人士要定期巡查自己的物业.
Adverse possession is a process by which premises can change ownership. It is a governed by statute[1] concerning the title to real property (land and the fixed structures built upon it). By adverse possession, title to another's real property can be acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period. For example, squatter's rights are a specific form of adverse possession.
The circumstances in which adverse possession arises determine the type of title acquired by the disseisor (the one who obtains the title from the original owner), which may be fee simple title, mineral rights, or another interest in real property. Adverse possession's origins are based both in statutory actions and in common law precepts, so the details concerning adverse possession actions vary by jurisdiction. The required period of uninterrupted possession is governed by the statute of limitations. Other elements of adverse possession are judicial constructs.
HistoryAt common law, where entitlement to possession of land was in dispute (originally only in what were known as real actions), the person claiming a right to possession was not allowed to allege that the land had come into his possession in the past (in older terminology that he had been "put into seisin") at a time before the reign of Henry I.[2] The law recognized a cut off date going back into the past, before which date the law would not be interested. There was no requirement for a defendant to show any form of adverse possession.
As time went on, the date was moved by statute -- first to the reign of Henry II[3], and then to the reign of Richard I.[4] No further changes were made of this kind.
By the reign of Henry VIII the fact that there had been no changes to the cutoff date had become very inconvenient. A new approach was taken whereby the person claiming possession had to show possession of the land for a continuous period, a certain number of years (60, 50 or 30 depending on the kind of claim made) before the date of the claim.[5] Later statutes have shortened the limitation period in most common law jurisdictions.
[edit] Purpose and moral basisAdverse possession exists to cure potential or actual defects in real estate titles by putting a statute of limitations on possible litigation over ownership and possession.
Because of the doctrine of adverse possession, a landowner can be secure in title to his land. Otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. The doctrine of adverse possession prevents this.
This means the law may be used to reward a person who possesses the land of another for a requisite period of time. Failure of a landowner to exercise and defend his property rights for a certain period may result in the permanent loss of the landowner's interest in the property.
[edit] Requirements for adverse possessionThe adverse party is called the disseisor, meaning one who dispossesses the true owner of the property. The disseisor must openly occupy the property exclusively, keeping out others, and use it as if it were his own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continual (although not necessarily continuous or constant) without challenge or permission from the lawful owner, for a fixed statutory period to acquire title. Where the property is of a type ordinarily occupied only during certain times (such as a summer cottage), the disseisor may need to have only exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.
[edit] Basic requirements for adverse possessionAdverse possession requires at a minimum five basic conditions being met to perfect the title of the disseisor. These are:
Open and notorious use of the property – The disseisor's use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.
Continuous use of the property – The disseisor must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor's time on the land, not how long true owner has been dispossessed of it. Occasional activity on the land with long gaps in activity fail the test of continuous possession. Courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal action, and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of the disseisor's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.
Exclusive use of the property – The disseisor holds the land to the exclusion of the true owner. If, for example, the disseisor builds a barn on the owner's property, and the owner then uses the barn, the disseisor cannot claim exclusive use. There may be more than one adverse possessor, taking as tenants (i.e. owners) in common, so long as the other elements are met.
Actual possession of the property – The disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession. In Cone v. West Virginia Pulp & Paper, the United States Court of Appeals for the Fourth Circuit held that Cone failed to establish actual possession by occasionally visiting the land and hunting on it, because his actions did not change the land from a wild and natural state. The actions of the disseisor must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements. If the property is residential, such actions may include mowing the yard, trimming trees and hedges, changing locks, repairing or replacing fixtures (such as a swimming pool, sprinkler system, or appliances), or other actions so as to maintain the property for its intended use, to the exclusion of its true owner.
Non-permissive, hostile or adverse use of the property – The disseisor entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile. The disseisor's motivations may be viewed by the court in several ways: Objective view—used without true owner's permission and inconsistent with true owner's rights. Bad faith or intentional trespass view—used with the adverse possessor's subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility). Good faith view—a few courts have required that the party mistakenly believed that it is his land. All views require that the disseisor openly claim the land against all possible claims.
These elements are commonly arranged under the mnemonic "OCEAN".
[edit] Specific requirements for adverse possessionA court may require some combination of the following as elements of the basic requirements for adverse possession listed above. Which of these applies varies by jurisdiction and may be a result of interpreting common law or of statute.
Claim of title or claim of right. The Supreme Court of the United States has ruled that the mere intent to take the land as one's own constitutes "claim of right."[citation needed] Other cases have determined that a claim of right exists if the person believes he has rightful claim to the property, even if that belief is mistaken.[citation needed] A negative example would be a timber thief who sneaks onto a property, cuts timber not visible from the road, and hauls the logs away at night. His actions, though they demonstrate actual possession, also demonstrate knowledge of guilt, as opposed to claim of right.
Good faith (in a minority of states) or bad faith (sometimes called the "Maine Rule" although it is now abolished in Maine)[citation needed]
Improvement, cultivation, or enclosure [6]
Payment of property taxes. This may be required by statute, such as in California [7], or just a contributing element to a court's determination of possession. Both payment by the disseisor and by the true owner are relevant.
Color of title: A legal document that appears (incorrectly) to give the disseisor title. [8]
Dispossession not under force of arms. Dispossession by armed invasion does not establish a claim of adverse possession against the true owner.[citation needed]
[edit] Effect of adverse possessionA disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession.
In some jurisdictions (such as England and Wales), the title of the landowner will be automatically extinguished once the relevant limitation period has passed. This process now applies only to unregistered land.
In New York, to acquire property by adverse possession, all that is required is a showing that the possession constitutes an actual invasion of or infringement upon the owner’s rights. [9] In other jurisdictions, the disseisor acquires merely an equitable title; the landowner is considered to be a trustee of the property for the disseisor.
Adverse possession extends only to the property actually possessed. If the original owner had a title to a greater area (or volume) of property, the disseisor does not obtain all of it. The exception to this is when the disseisor enters the land under a color of title to an entire parcel, his continuous and actual possession of a small part of that parcel will perfect his title to the entire parcel defined in his color of title. Thus a disseisor need not build a dwelling on, or farm on, every portion of a large tract in order to prove possession, as long as his title does correctly describe the entire parcel.
In some jurisdictions, a person who has successfully obtained title to property by adverse possession may (optionally) bring an action in land court to "quiet title" of record in his name on some or all of the former owner's property. Such action will make it simpler to convey the interest to others in a definitive manner, and also serves as notice that there is a new owner of record, which may be a prerequisite to benefits such as equity loans or judicial standing as an abutter. Even if such action is not taken, the title is legally considered to belong to the new titleholder, with most of the benefits and duties, including paying property taxes to avoid losing title to the tax collector. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another. (Many jurisdictions have accepted tax payment for the same parcel from two different parties without raising an objection or notifying either party that the other had also paid.)
Adverse possession does not typically work against property owned by the public.
The process of adverse possession would require a thorough analysis if private property is taken by eminent domain, after which control is given to a private corporation (such as a railroad), and then abandoned.
Where land is registered under a Torrens title registration system or similar, special rules apply. It may be that the land cannot be affected by adverse possession (as was the case in England and Wales from 1875 to 1926, and as is still the case in the state of Minnesota[10]) or that special rules apply.
Adverse possession may also apply to territorial rights. In the United States, Georgia lost an island in the Savannah River to South Carolina in 1990, when South Carolina had used fill from dredging to attach the island to its own shore. Since Georgia knew of this yet did nothing about it, the U.S. Supreme Court (which has original jurisdiction in such matters) granted this land to South Carolina, although the Treaty of Beaufort (1787) explicitly specified that the river's islands belonged to Georgia.[11]
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发表于 2012-5-23 23:45
