Perhaps no city in America is as consumed with proximity and power as Washington, D.C. It’s a city where your location determines your access, and everyone is always trying to encroach a few more inches. If you’re a property owner in our nation’s capital, then it makes sense for you to be worried about adverse possession. If you have two or three neighbors whose land borders yours, those neighbors might be able to gain legal title to pieces of your property under a legal concept called adverse possession.
To make sure that your land remains yours – that is, that a neighbor can’t lay claim a portion of it after having encroached on it for a while – you should familiarize yourself with the District’s laws on adverse possession. And while less likely to occur in such a crowded city, it’s worth realizing that a trespasser can essentially squat on your land and develop the same type of claim to legal ownership.
There may also be times when you yourself need to assert an adverse possession claim, over land that you feel you've developed a right to use and want to continue using.
Adverse possession is covered under DC local law, known as the Code of the District of Columbia. This article gives an overview of adverse possession’s unique aspects in DC.
Adverse possession is a legal concept that allows a trespasser – sometimes a stranger but more often a neighbor – to gain legal title over someone else's land. The concept dates back to early British jurisprudence. More recently, its function has been to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make him or her leave would create hardship.
Because adverse possession is developed by state courts, it differs slightly from one state to the next. In DC, courts repeatedly emphasize that they assume that one who occupies the land of another does so with the latter’s consent. In other words, burden of proof to establish a claim of adverse possession is on the trespasser by clear and convincing evidence. The legal holder of title has the presumption of ownership until the adverse possessor can meet that burden. To put this differently: it is the trespasser’s job to prove that the judge should give him or her ownership over the land.
Like in most states, adverse possession in the District of Columbia can be proven based on the character of a trespasser’s possession and the length of time he or she possesses the land. While some aspects of adverse possession are spelled out in local legislation, courts dictate the elements that a trespasser must establish. A trespasser’s possession must be:
1) hostile (against the right of the true owner and without permission)
2) actual (exercising control over the property)
3) exclusive (in the possession of the trespasser alone)
4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
5) continuous for the statutory period (which is 15 years in DC, under D.C. Code § 12-301).
For example, imagine that Bob and Jill live next to one another in Georgetown. There is no dividing fence or boundary between their yards. Bob builds a shed that is actually on Jill’s side of the property, covering about 14 square feet of earth. Jill is busy with her life and doesn't get around to objecting. Bob uses the shed as if it were on his own land. He does this for 16 years. Under the rubric described above, Bob can probably establish that he “owns” the land on which he was encroaching. From Jill’s perspective, she could have stopped Bob by demanding over those 16 years that he remove his shed, or at least sign a rental agreement showing that they had come to a mutually consensual arrangement. But DCcourts will not allow her to suddenly eject Bob after sitting on her rights for nearly two decades.
What if you’re a property owner and notice that a trespasser is on your land? Under DC Code § 16-1103, a property owner can seek to eject a trespasser. The owner must establish that 1) he or she “possessed of the premises, and while he was so possessed the defendant [trespasser] entered wrongfully into possession thereof” and 2) the defendant [trespasser] is wrongfully exercising acts of ownership over the premises.”
Prevailing in this type of lawsuit will establish that the trespasser does not, in fact, “own” your land through adverse possession.
Although every state has land that’s owned by the government itself, DC is perhaps unique in the extent to which public and private land coexists. One can easily walk from one neighborhood of DC to another, passing dozens of areas controlled by the local or federal government – museums, monuments, parks, memorials, fountains, and schools – even as they exist right alongside private homes and businesses.
This matters in an analysis of adverse possession because of a legal doctrine known as nullum tempus occurit regi(“no time runs against the sovereign”).
That is to say, municipal property devoted to a public use may not be acquired by adverse possession. It is insufficient for a trespasser seeking to acquire title to public property to demonstrate that the District did not use the disputed property for 15 years, while the trespasser did. The land still does not lose its public character and its public use did not cease; the property is still dedicated to a public use. Private individuals cannot acquire title to land dedicated to public use by adverse possession.