What is adverse possession, and how long does it take in Virginia?
Adverse possession is the way someone who is not the record owner can gain title to land by occupying it. In Virginia the claimant must prove, by clear and convincing evidence, possession that was actual, hostile, exclusive, visible and continuous, under a claim of right, for 15 years. Only a court decides whether a particular possession met that test.
Fifteen years to sue for the land, and fifteen years to prove
Start with the owner's side of the clock. Virginia puts a limit on how long a person has to go onto land, or sue, to recover it from someone else, and the number is fifteen years.
No person shall make an entry on, or bring an action to recover, any land unless within fifteen years next after the time at which the right to make such entry or bring such action shall have first accrued to such person or to some other person through whom he claims
Va. Code 8.01-236
That same number comes back from the other direction. When someone who is not the record owner claims the land by occupying it, the Supreme Court of Virginia states the period that possession must last as the statutory period of 15 years. The owner's time limit to recover the land and the period the claimant must prove rest on the same fifteen-year number, seen from opposite sides of the fence.
Do not confuse it with a neighboring rule. A right to use a way across someone else's land that is gained through long use, rather than title to the ground, is a prescriptive easement, and the Supreme Court of Virginia puts that period at least 20 years. The two numbers are not interchangeable, and what it takes to prove the second is covered in what a prescriptive easement is.
Five kinds of possession, a claim of right, and a high bar of proof
Adverse possession is how a person who does not hold the deed can come to hold title by occupying the land. Virginia's test is one sentence with several parts, and the claimant has to prove every one of them by clear and convincing evidence.
- Actual
- Use and occupation of the property, evidenced by fencing it, is proof of actual possession. What must be actual is the possession itself.
- Hostile
- Possession under a claim of right and adverse to the right of the true owner.
- Exclusive
- Stated by the Supreme Court of Virginia as its own element; how it applies to a given set of facts is for an attorney.
- Visible
- Possession so obvious that the true owner may be presumed to know about it.
- Continuous
- Possession without interruption for the whole statutory period.
- Under a claim of right
- Stated alongside the other elements, and part of the definition of hostile possession above.
- For 15 years
- The statutory period, the same fifteen-year figure that limits the owner's action to recover the land.
Mistakes about where a line runs have their own rule, and that rule, along with how intervening sales and claims involving the Commonwealth are treated, is set out in adverse possession, the basics.
A fence around the ground and a mower across it are different evidence
The two uses owners ask about most are a neighbor's fence and a neighbor's mowing. Held against the elements, they come out very differently.
The fence
Use and occupation of property, evidenced by fencing it, is what the Supreme Court of Virginia calls proof of actual possession. In a case that Court described, a landowner who enclosed three acres of his neighbor's land along with his own inside a fence, and zealously examined his boundary fence for damage, was found to have earned title to the fenced land by adverse possession. That case is an illustration, not a promise about any other fence. A fence proves one element; the claimant still has to prove the rest, for fifteen years, by clear and convincing evidence.
The mowing
Mowing sits at the other end. In a case the Supreme Court of Virginia described in 2004, periodical or occasional cultivation and mowing of the grass on an unenclosed, unimproved area of land, done for the purpose of appearance, was held not enough to establish adverse possession. On those facts, keeping ground tidy was not possessing it.
Most real situations fall between those two, and the facts decide them. When a new survey shows a fence, a drive or a building sitting across a line, the plat and the two different questions it raises are covered in what an encroachment is.
Title by possession is confirmed in a courtroom, not at the kitchen table
Whether any particular possession ripened into title is a question only a court decides, and it gets there through the parties' attorneys. The claimant carries the burden on every element. An owner reading this page about a neighbor's use of their ground, or a neighbor reading it about ground they have used for years, has the same next step: an attorney who can weigh the facts against the elements.
Title gained this way does not arrive with a new deed. A published Court of Appeals of Virginia opinion puts it in six words: title by adverse possession "ripens outside the chain of title". What that means for a buyer is one of the subjects of the adverse possession guide linked above, and the items that can cloud a title from inside the record are a separate list, covered in what a cloud on title is.
Where the real disagreement is about where a line runs, the owners can settle it by agreement or ask a court to fix it, and both routes are laid out in boundary disputes, the basics.
A neighbor's long use of land you hold title to?
Send the county, the acreage and what the neighbor has done on the ground and for how long, and Lowell will say plainly what that use means for a sale, leaving the title question to your attorney. No cost, no obligation.
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Questions this raises
Does someone claiming my land have to tell me they are claiming it?
No. The Supreme Court of Virginia has said that actual notice to the titleholder, in the sense of oral or written communication, is not required to establish ownership by adverse possession; what must be actual is the possession itself. The possession does have to be visible, meaning so obvious that the true owner may be presumed to know about it.
Does a neighbor's fence on my side of the line give the neighbor title?
Not by itself. The Supreme Court of Virginia treats use and occupation of property, evidenced by fencing it, as proof of actual possession, which is one element. The claimant still has to prove hostile, exclusive, visible and continuous possession under a claim of right for 15 years, by clear and convincing evidence. Whether a particular fence has done that is for a court, through the parties' attorneys.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Va. Code 8.01-236: limitation of entry on or action for land Virginia General Assembly
- Quatannens v. Tyrrell (2004) Supreme Court of Virginia
- Nelson v. Davis (2001): prescriptive easement period Supreme Court of Virginia
- Ho v. Rahman (published opinion) Court of Appeals of Virginia