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Rhode Island Agencies

Monthly Brief

Adverse Possession

Stewart Title Tips

ADVERSE POSSESSION trumps record title to land. It is listed as an exception to the Rhode Island Marketable Record Title Act (R.I.G.L. §34-13.1-3(3)). Usually, it is totally dependent on off-record facts. Title dependent upon adverse possession can never be insured without court action on record. Adverse possession will not run against State land, land owned by municipalities or against a public way.

Adverse possession will extinguish all other property rights acquired by statute. A landowner in possession of his land for more than ten years, after losing the title at a tax sale, can defeat a successful tax sale bidder who petitions to foreclose the landowner's right of redemption. Picerne v. Sylvestre 113 RI 598 (1974). Conversely, a tax sale purchaser can extinguish the taxpayer's right of redemption with ten years adverse possession after the tax sale. Sleboda v. Heirs at law of Harris 508 A2d 68 (1986). Likewise, title to land offered for dedication as a public highway on a plat, but not accepted by public usage or accepted by a municipality, can be gained by adverse possession. Gammons v. Caswell 447 A2d 361 (1982). Also, the private easements in all the platted streets, held by the record lot owners of a recorded plat, can be extinguished by adverse possession where the town does not accept the streets and the public does not use them. Gammons v. Caswell 447 A2d 361 (1982).

Adverse possession has its origin in Roman law, where the maxim was: "That which is the property of no one is by natural reason, given to the first occupant."

The original Rhode Island statute was enacted in 1711. It barred the right of entry and any possession action where there was adverse possession by the defendant for 20 years. It differed from the English statute and those of the other colonies in that it not only provided an affirmative defense against the right of entry, but it also transferred the title of the estate itself absolutely to the possessor, whenever the conditions provided were fulfilled. Union Savings Bank v. Henry M. Taber 13 RI 683 at 692; Radican v. Radican 22 RI 405 (1901). The statutory time period for adverse possession was shortened to 10 years in 1913.

Actually, Rhode Island has two adverse possession statutes: the old defensive statute, now R.I.G.L § 34-7-1 and the so-called "lost grant" offensive statute, now R.I.G.L. § 34-16-7. The Rhode Island Supreme Court has characterized R.I.G.L. § 34-7-1 as the "shield" and R.I.G.L. § 34-16-7 as the "sword." The equitable theory of "lost grant" actually existed at common law and was used through the years by the Rhode Island Courts. The theory held that where there was possession of land for a long duration, the courts would presume an express grant properly executed, acknowledged and delivered, which was lost. The courts applied this legal fiction in order to quiet titles. The Rhode Island General Assembly codified this concept or doctrine by enacting the "lost grant" statute (R.I.G.L. § 34-16-7) in 1938 and revising it in its final form in 1940. This allowed persons to petition to quiet a title based upon "open, adverse, exclusive and uninterrupted possession and enjoyment" for a period of ten years.

In fact, the common law "lost grant" doctrine appears to be the only basis for obtaining the right of prescription in Rhode Island, since neither R.I.G.L. § 34-7-1 nor R.I.G.L.§ 34-16-7 ever mention adverse use or user and easements are non-possessory rights (incorporeal hereditaments) in any case. Both these statutes deal only with "possession." Evans v. Dana 7RI 306 (1863). The Rhode Island Supreme Court has, nevertheless, frequently cited these statutes in prescription cases. Actually, the whole case law concerning adverse possession is somewhat muddled in Rhode Island since the Supreme Court either accidentally or intentionally imported Massachusetts case law in Sherman v. Goloskie 95 RI 457 (1963). That case cited a Connecticut case and a Maine case, each of which quoted Am Jur listing the elements to be proved for adverse possession. Am Jur listed the Massachusetts elements stating that possession must be "actual, open, notorious, hostile and continuous under claim of right." These elements have been cited in cases ever since, even though R.I.G.L. § 34-7-1 lists the elements as "uninterrupted, quiet, peaceful and actual seisin and possession...claiming the same as .... their....sole and rightful estate in fee simple...." The lost grant statute (R.I.G.L. § 34-16-7) lists the elements of adverse possession as "open, adverse, exclusive, uninterrupted possession and enjoyment."

Stewart Title, 15 Messenger Drive, Warwick, RI 02888 (401) 861-1511