Adverse possession, the basicsHow fifteen years of open occupation can become title in Virginia, and what breaks the claim

The Supreme Court of Virginia restated the whole test in 2004, in Quatannens v. Tyrrell, and every later year of the clock is measured against it.

a claimant must prove actual, hostile, exclusive, visible, and continuous possession, under a claim of right, for the statutory period of 15 years.

Supreme Court of Virginia, Quatannens v. Tyrrell (2004)

The claimant carries the burden of proving every one of those elements, and the standard is clear and convincing evidence.

The first two elements take shape early. Use and occupation of property, evidenced by fencing it, is proof of actual possession. Possession is hostile when it is under a claim of right and adverse to the right of the true owner. None of it requires a conversation: the Court has said actual notice to the legal titleholder, in the sense of oral or written communication, is not required, and that what must be actual is the possession itself.

How a fence around disputed ground and occasional mowing across it have fared against these elements is set out in what adverse possession is and how long it takes in Virginia.

Some claims start with a fence both neighbors believed was on the line. The Supreme Court of Virginia has addressed what that belief does to the hostility element since at least 1916.

In Quatannens the Supreme Court of Virginia said that in narrow circumstances a mistake may negate hostile possession. It then described when the hostility requirement is met despite the mistake: when a claimant mistakenly believes a particular line on the ground marks the extent of his own land, and treats all the land inside that line as his own in a way that meets the other requirements, particularly actual, exclusive and visible possession, the hostility requirement is generally satisfied.

For a line first located by a mistake as to the true boundary, the Court restated a rule it set in a 1916 decision, one it described as its effort to clarify the law of adverse possession by mistake.

the other facts and circumstances in the case must negative by a preponderance of evidence the inference which will otherwise arise that there was no definite and fixed intention on the part of the possessor to occupy, use and claim as his own[,] the land up to a particular and definite line on the ground.

Supreme Court of Virginia, Quatannens v. Tyrrell (2004)

Put plainly: when the line was first located by mistake, the rest of the evidence has to show, by a preponderance, that the possessor had a definite and fixed intention to occupy, use and claim the land as his own up to a particular and definite line on the ground.

A different mistake has a different result. The same opinion quotes an earlier holding, from a prescriptive easement case, that use of property under the mistaken belief of a recorded right cannot be adverse as long as that mistake continues. A person who thinks a recorded document gives him the right to be there is not, while that mistake lasts, using the land adversely.

Fifteen years of possession does not record itself. Whether any particular possession ripened into title is decided by a court, on clear and convincing evidence of every element, through the parties' attorneys.

The question can come up inside a boundary case. A person with a subsisting interest in land and a right to its possession may ask the court to ascertain and designate the true boundary line with adjoining owners, and the same strip can be the subject of a possession claim. How a disputed line moves from a survey to an agreement, an approved plat or a recorded judgment is laid out in boundary disputes, the basics.

Where the Commonwealth brings a proceeding, one more section of the Code applies, and its words are quoted here without gloss.

No statute of limitations which shall not in express terms apply to the Commonwealth shall be deemed a bar to any proceeding by or on behalf of the same.

Va. Code 8.01-231