I. Introduction to Adverse Possession
You may have heard the term “good fences make good neighbors.” The doctrine of adverse possession, is alive and well in Illinois and punishes landowners who neglect their boundaries. Adverse possession is a legal doctrine under which a person who does not have legal title to a piece of real property acquires legal ownership based on continuous possession or occupation of the property inconsistent with its true owner.
This may seem unusual, after all “squatters” are not exactly viewed by society in a positive light. However, under Illinois law (as well as the law of several states), a landowner has a duty to periodically reexamine his or her property and eject would-be squatters.
II. What are the Elements of Adverse Possession in Illinois?
Adverse possession in Illinois requires that the adverse possessor: (1) have continuous occupation for the “prescriptive period”; (2) have an interest that is hostile to the true owner; (3) have actual possession over the subject land; (4) exercise occupation that is open, notorious, and exclusive; (5) and under claim of title for a period of 20 years (the “prescriptive period” referred to above). By meeting these criteria, the adverse possession gains title to the parcel. See Tapley v. Peterson, 141 Ill.App.3d 401, 405 (5th Dist. 1986).
- 1. Continuous
- 2. Hostile
- 3. Actual and Exclusive
- 4. Open and Notorious, and
- 5. Under claim of title for 20 years (but see below regarding “color of title”)
A. Continuous Use Leading to Adverse Possession
The adverse possessor must continually occupy the property for a period of 20 years. 735 ILCS § 5/13-101 et seq. This is known as the prescriptive period which begins when the occupier enters the true owner’s property. However, there are exceptions to this rule.
1. Continuous Occupation Must be Consistent with the Type of Land
The exception is that the adverse possessor’s continuous occupation must be consistent with the type of land at issue. In other words, an occupier of land may not necessarily need to be on the land so long as the land is used for the purpose it is intended. This tends to arise in commercial and farming settings.
Example: O owns 10 acres of land used for soybean farming in Illinois. A, his neighbor who lives on the land from March through October every year from 2000 through 2020 before flying to California, adversely possesses 1 acre which A uses to cultivate a different plant—corn. In 2020, A may successfully bring a claim against O to quiet title to that 1 acre. Why? Because A, the adverse possessor used the occupied parcel for the 20-year prescriptive period by continuing to use the land consistent with its intended purpose—farming. This is true even if A did not continuously occupy the parcel from November through February of each year.
Generally, mowing a lawn on or some non-possessory use on the land consistent with its character will not give rise to adverse possession. Township of Jubilee v. State of Illinois, 405 Ill. App. 3d 489, 498-99 (3rd Dist. 2010); but see Joiner v. Janssen, 85 Ill. 2d 75, 81 (Ill. 1981) (explaining that mowing grass, raking leaves, and planting trees is sufficient to provide notice to true owner). Only when it is “combined with nonpermissive construction or public assertions of laying a claim” will continuous use meet the requirements of adverse possession. Id.; see also Nitterauer v. Pulley, 401 Ill. 494, 503 (Ill. 1948).
2. Disability Tolls the Running of an Adverse Possession Prescriptive Period
Generally, disability tolls the running of the adverse possession period. In this context disability means a minor, imprisonment, or mentally incompetent, or injunction preventing the true owner from filing a lawsuit against the adverse possessor (other reasons listed are war and the owner’s concealment). However, in Illinois, upon the lifting of a disability a challenge against the adverse possessor must be made within 2 years. 735 ILCS 5/13-112.
Example: O owns 10 acres of land used for soybean farming in Illinois. O suffers a car accident in 2000. On or about the same time, A, his neighbor, occupies 1 acre. A’s 20-year prescriptive period is tolled (i.e., it stops running). O subsequently recovers from his injuries in 2001. Now, in 2001 O’s disability has lifted and A’s continuous possession continues to run. Under Illinois law, O has until 2003 (i.e., two years after the disability is lifted) to bring a challenge against A.
3. Color of Title Shortens Continuous Occupation from 20 to 7 years
“Color of title” means possession of a defective instrument which purports to convey good title, but which does not convey actual title. See Brooks v. Bruyn, 35 Ill. 392, 395 (Ill. 1864). In Illinois, color of title is not required for an adverse possession claim. However, if a person does have color of title, it will shorten the continuous occupation period in Illinois from the usual 20 years to 7 years. See 735 ILCS 5/13-109-110.
Tacking is where an adverse possessor is in privity to another individual, such as in a grantor-grantee. If an adverse possessor claimant cannot individually satisfy the time requirement, she can “tack on” successive periods of prior possession if there is privity between the current and prior occupants.
When it comes to adverse possession, hostility does not refer to a violent or combative situation. Rather, it means that the squatter’s ownership claim must be “incompatible with that of the true owner and all others.” Joiner v. Janssen, 85 Ill. 2d 75, 81 (Ill. 1981). Different jurisdictions allow one of three ways for the hostility element to be satisfied.
1. Occupation Sufficient
States which follow this rule, typically have statutes or common law which explains that the simple possession of land inconsistent with the interests of the true owner is sufficient to meet the hostility element. In these states, the adverse-possessor may trespass upon the land of another and does not need to know that it belongs to someone else.
2. Bad Faith
Other states take the opposite approach and require evidence of bad faith. In the states which require such actions from the adverse possessor, the trespasser must be aware that their occupation is trespass to land. They must know at the time the trespass occurs that they are attempting to take land belonging to another.
3. Good Faith, But Mistaken Belief
Finally, there is Illinois, which requires a “good faith” but mistaken belief that the trespasser made a mistaken in occupying land belonging to another. In Illinois, “good faith” is defined as “the absence of an intent to defraud the holder of better title, or simply, as the absence of bad faith.” McCree v. Jones, 103 Ill.App.3d 66, 70 (5th Dist. 1981). The squatter may not be aware of the property’s exact legal status, but if they meet all other requirements, the hostility element will be fulfilled by their use of another’s land inconsistent with the true owner. There is a rebuttable presumption of good faith, which can be overcome with evidence from the true owner showing “intent to deceive, mislead, or defraud.” Simpson v. Manson, 345 Ill. 543, 553 (Ill. 1931).
C. Actual and Exclusive Adverse Possession
Nearly all jurisdictions treat “actual” possession similarly. This simply means that the occupier has physically encroached upon the land of another and physically occupied it. Actual possession can be proved in court with extrinsic evidence such as showing improvements to land (e.g., building a gravel road, erecting a structure, etc.)
D. Open and Notorious Use
The “open and notorious” element requires that the occupation is not concealed from the outside world. Here, open and notorious means use that the occupation is so apparent, it puts the true owner on notice of the adverse claim. As one court colorfully put it, the occupier: “must unfurl his flag on the land, and keep it flying so that the owner may see, if he will, that an enemy has invaded his dominions and planted his standard of conquest.” Grace v. Koch, 81 Ohio St.3d 577, 581 (Ohio 1998). The requirement for open and notorious use is uniform across virtually all jurisdictions.
E. Under claim of title for 20 years
As noted above, subject to a few exceptions, in Illinois the occupier must continuously occupy the land for 20 years in order to adversely possess it. If the land in use is seasonal in nature (think “farming”), then a continuous use consistent with the type of land is sufficient. Additionally, if the adverse possessor states that he or she is proceeding under “color of title,” that shortens the period to 7 years. This is good reason for anyone seeking to eject an occupier to act promptly.
You should act promptly if you believe you own land that may belong to someone else or if you believe that a person is trespassing on your land. Ultimately, your remedy is legal in nature and will require the assistance of qualified legal counsel. Syed Law can help you bring an action to quiet title so you can clear any cloud on title.