What is adverse possession?

Under Indian law, if a trespasser has been in continuous control over a property for 12 years, without any legal action by the rightful owner to eject the trespasser from the property, it is termed as “adverse possession”.

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Extract from the Wikipedia article on adverse possession: In general, a property owner has the right to recover possession of their property from unauthorised possessors through legal action such as ejectment. However, in the English common 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.

The idea is that if the rightful owner does not take any action to claim the property for the time period specified, the law assumes that they are not interested in the property and hence the trespasser can be awarded the rights.

However, it is to be noted that if the rightful owner starts court proceedings to eject the trespasser from the illegal occupied property before the 12 years of continuous occupation are over, then the time from the beginning of the illegal occupation would not be counted at all in the 12 years, as long as the legal proceedings are ongoing.

Therefore, if one’s property is being trespassed by an illegal occupier, it is best to initiate the court proceedings as soon as possible.

It is best to ensure that illegal occupation does not take place initially. For this, the rightful owner should keep checking on it regularly to make sure that illegal construction is not being made on the property. They should, if needed, construct boundary walls on the property to deter illegal possession.

In India, illegal possession can be a major issue with NRIs who may be working for many years in a foreign country and not checking on their own land regularly. However it may also happen due to unscrupulous relatives or others who may have designs on the property.

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