Property Law: Adverse Possession in Kenya

Adverse possession, sometimes colloquially described as "squatter's rights",^[a] is a legal principle that applies when a person who does not have legal title to a piece of property—usually land (real property)—attempts to claim legal ownership based upon a history of possession or occupation of the land without the permission of its legal owner.^[1]

In general, a property owner has the right to recover possession of their property from unauthorized possessors through legal action such as ejectment. However, in the Englishcommon law tradition, courts have long ruled that when someone occupies a piece of property without permission and the property's owner does not exercise their right to recover their property for a significant period of time, not only is the original owner prevented from exercising their right to exclude, but an entirely new title to the property springs up in the adverse possessor. In effect, the adverse possessor becomes the property's new owner.Over time, legislatures have created statutes of limitations that specify the length of time that owners have to recover possession of their property from adverse possessors.

A person claiming adverse possession is usually required to prove non-permissive use of the property that is actual, open and notorious, exclusive, adverse, and continuous for the statutory period.

Personal property, traditionally known as "chattel", may also be adversely possessed, but owing to the differences in the nature of real and chattel property, the rules governing such claims are rather more stringent, and favor the legal owner rather than the adverse possessor. Claims for adverse possession of chattel often involve works of art.

Requirements

The party seeking title by adverse possession may be called the disseisor, meaning one who dispossesses the true owner of the property.

adverse possession requires at a minimum five basic conditions being met to perfect the title of the disseisor. These are that the disseisor must openly occupy the property exclusively, in a manner that is open and notorious, keep out others, and use it as if it were his own.

Actual possession

The disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses (merely walking or hunting on land does not establish actual possession). The actions of the disseisor must change the state of the land (in the case of non-residential property, taking such actions as clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements) or, if the property is residential, maintaining the property for its intended use (taking such actions as mowing the yard, trimming trees and hedges, changing locks, repairing or replacing fixtures such as a swimming pool, sprinkler system, or appliances), all to the exclusion of its true owner.

In Cone v. West Virginia Pulp & Paper, theUnited States Court of Appeals for the Fourth Circuit held that Cone failed to establish actual possession by occasionally visiting the land and hunting on it, because his actions did not change the land from a wild and natural state.

Hostile possession
The disseisor must have entered or used the land without permission from the true owner. The disseisor's motivations may be interpreted by the court in several ways, depending upon state law and precedent:
*Objective view – the land was used without true owner's permission and in a manner inconsistent with true owner's rights;
*Bad faith or intentional trespass view – the land was used with the adverse possessor's subjective intent to disregard or violate the actual property owner's rights;

Renters, hunters or others who enter the land with permission are not taking possession that is hostile to the title owner's rights. (mistaken possession in some jurisdictions does not constitute hostility)

Open and notorious use

The disseisor must possess the property in a manner that is capable of being seen. That is, the disseisor's use of the property must be sufficiently visible and apparent that it gives notice to the legal owner that someone may assert claim, and must be of such character that would give notice to a reasonable person. If legal owner has actual knowledge of the use, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.

Continuous use

The disseisor claiming adverse possession must hold that property continuously for the entire statute of limitations period, and use it as a true owner would for that time.

Generally, the disseisor's openly hostile possession must be continual (although not necessarily constant) without challenge or permission from the lawful owner, but breaks in use that are consistent with how an owner would use the property will not prevent an adverse possession claim. Occasional activity on the land with long gaps in activity fail the test of continuous possession; courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If at any time during the statute of limitations period, the true owner ejects the disseisor from the land either verbally or through legal action, and the disseisor then returns and dispossesses him again, then the statute of limitations period begins anew.

The statute of limitations applies only to the disseisor's time on the property, not how long the true owner may have been dispossessed of it (by, say, another disseisor who then left the property). However, if adverse possession is continuous between two or more successive disseisors without interruption, it may be possible for the second disseisor to claim adverse possession for the entire period based upon a legal doctrine known as tacking.

Exclusive use

The disseisor holds the land to the exclusion of the true owner. There may be more than one adverse possessor, taking as tenants in common, so long as the other elements are met. But adverse possession cannot be successfully claimed if, any time during the statutory period, the true owner uses the land for any reason.