Kentucky’s Adverse Possession Law
Kentucky law allows people who trespass or encroach on the property of another for a minimum period of time to develop an ownership claim to the property. A successful adverse possession claim satisfies five elements: the trespasser’s possession must be (1) actual, (2) hostile, (3) exclusive, (4) open and notorious, and (5) continuous. Appalachian Reg’l Healthcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878, 880 (Ky. 1992). Once an owner shows he or she has good title, the trespasser bears the burden—a clear and convincing evidence standard—on all five elements. Vick v. Elliot, 422 S.W.3d 277, 279 (Ky. Ct. App. 2013); see also Havens v. Clem, 275 S.W.2d 70, 71 (Ky. 1954).
Kentucky courts also require “definiteness.” See id. For a claim to be sufficiently definite, the trespasser must (a) “indicate the extent of his claim by well-defined boundaries” (i.e. erect a fence) or (b) have color of title. See Gillis v. Martin, 145 S.W.2d 1051, 1052 (Ky. 1940). A trespasser has “color of title” if “any instrument” purports to convey title to the trespasser. McDaniel v. Ramsey’s Adm’rs, 204 S.W.2d 953, 954 (Ky. 1947). A trespasser with color of title has a definite claim: he or she claims to adversely possess the land described in the instrument. Gillis, 145 S.W.2d at 1052.
Adverse possession begins when a trespasser “actually possesses” property. Moore v. Stills, 307 S.W.3d 71, 78 (Ky. 2010). Actual possession requires entry; the trespasser must enter the property to trigger an adverse claim. See Elliott v. Hensley, 222 S.W. 507, 510 (calling entry “indispensably necessary” to an adverse possession claim). After entering, possession (and the statute of limitations) doesn’t begin until the trespasser “exerts dominion over [the property] to the exclusion of the rightful owner.” Moore, 307 S.W.3d at 78. The character of a property influences what type and degree of use is necessary for “actual possession.” Ely v. Fuson, 180 S.W.2d 90, 92 (Ky. 1944). Maintaining hiking paths and motorcycle trails on recreational property was insufficient for actual possession. Estate of Welliver v. Alberts, 278 Ill.App.3d 1028, 663 N.E.2d 1094 (196).
Next, a trespasser’s entry and possession must be hostile. Sweetin v. Sartin, 256 S.W.2d 524, 525–26 (Ky. 1953) (“[A]n element of adverse possession necessary to create title is a requirement that the trespasser openly evince a purpose to hold dominion over it in such hostility as will give notice to the owner of the nonpossessory title of his adverse claim.”). “Hostility” means the trespasser must use the property in a way that’s adverse to true owner’s rights. Hostility separates permissive uses—uses that the true owner allows (leaseholds, etc.)—from adverse uses (uses that challenge true owner’s hold on the “bundle of sticks”). For instance, no tenant (permissive use) would build an expensive physical improvement on his landlord’s property. See Elsea v. Day, 448 S.W.3d 259, 264 (Ky. Ct. App. 2014). Who would spend money improving property that doesn’t belong to him/her? No one. Therefore, physical improvements are “good indicators of a claimant’s intent to hold property adversely.” Id. The reasonable owner would see someone else building a house on his parcel as a (hostile) threat to his right to exclude.
The nature of a property determines what uses are “visible and of such a nature as would put the [reasonable] owner upon notice . . . that [a trespasser] was asserting a claim hostile to his title.” Ely v. Fuson, 180 S.W.2d 90, 92 (Ky. 1944). A trespasser mowing hay on a vacant city lot for a year would put any reasonable owner on notice about the hostile claim. Id. Less conspicuous or less threatening uses on a different parcel may be insufficiently hostile.
In Tartar, Kentucky’s then-highest court explained adverse possession can be hostile even if the trespasser mistakenly believed, for the entire statutory period, that he/she had good title. Tartar v. Tucker, 280 S.W.2d 150, 152 (Ky. 1955). The trespasser’s adverse possession can be both hostile and accidental. Id.
A trespassers paying taxes on a property is relevant but insufficient to show a hostile claim. Sweeten, 256 S.W.2d at 526.
Next, adverse possession has an exclusivity requirement: trespasser must exclusively possess the adversely-possessed property. Robert W. Keats, Kentucky Practice Series: Real Estate Transactions § 19:5 (2018). If true owner reclaims possession at any time during the statutory period, the clock resets. Id. In Kentucky, it’s possible for a trespasser to possess part of a parcel and the true owner to possess the rest. Cf. Lyle v. Holman, 238 S.W.2d 157 (Ky. 1951).
Open and Notorious
Next, a successful adverse possession claim must be open and notorious. In Appalachian Regional Healthcare, Kentucky’s Supreme Court described adverse possession’s “open and notorious” requirement:
The ‘open and notorious’ element requires that the possessor openly evince a purpose to hold dominion over the property with such hostility that will give the nonpossessory owner notice of the adverse claim. It is the legal owner’s knowledge, either actual or imputable, of another’s possession of lands that affects the ownership.
Appalachian Reg’l Healthcare, 824 S.W.2d at 880. A trespasser erecting physical improvements is the best evidence of openness and notoriety. Ky. Women’s Christian Temperance Union v. Thomas, 412 S.W.2d 869, 870 (Ky. 1967). If trespasser doesn’t erect physical improvements, then he or she must engage in “substantial activity” on the property. Id. Without either physical improvements or substantial activity, trespasser claim cannot satisfy the open and notorious element. Id.
The trespasser must satisfy the above four elements continuously for the statutory period. Thompson v. Ratcliff, 245 S.W.2d 592 (Ky. 1952). In other words, “the adverse possessor must keep his flag flying on the property at all times.” Thompson, 245 S.W.2d at 593. “Keeping the flag flying” does not mean the trespasser must live on the property or remain there constantly. Id. “The important consideration is whether or not the [trespasser’s] use of the property . . . demonstrates that he is asserting dominion over the property.” Id. Would the reasonable person believe trespasser controlled the property, uninterrupted, for the statutory period?
The statutory period acts as a time bar. Once a trespasser continuously satisfies the first four elements for the statutory period, true owner cannot reclaim title. In Kentucky, the period for most adverse possession claims is fifteen years. Ky. Rev. Stat. Ann. 413.010 (West 2019). Section 413.010 provides: “[A]n action for the recovery of real property may be brought only within fifteen (15) years after the right to institute it first accrued to the plaintiff.” True owner must bring his or her claim to eject within fifteen years of the trespasser’s first entry. Otherwise, true owner has no remedy to enforce his or her superior title.
The statutory period is shorter when trespasser has color of title. See Ky. Rev. Stat. Ann. § 413.060 (West 2019). Section 413.060 provides:
No action shall be brought under or by virtue of an adverse, interfering entry, survey or patent to recover the title or possession of land from an occupant if he, or the person under whom he claims, has a connected title thereto in law or equity, deducible of record from the Commonwealth, and has an actual occupancy of it by settlement thereon, under such title, for seven (7) years before the commencement of the action. This possession of land shall bar the right of entry into it by any person, under an adverse title or claim, and sufficient possession to bar the right to recover it shall vest the title in the occupant or his vendee.
Id. If the trespasser has color of title, a continuous (for seven years) actual, hostile, exclusive, and open/notorious claim bars true owner’s remedy. If the trespasser does not have color of title, but has a continuous (for fifteen years) actual, hostile, exclusive, and open/notorious claim bars true owner’s remedy.
Kerrick Bachert regularly advises clients on property law and land disputes. Please contact Attorney Natalie Feldman ([email protected]) if you have any question regarding property law and land disputes.