What’s Yours is Mine: Understanding Adverse Possession in Indiana

Most have heard the phrase “possession is nine-tenths of the law”, which, in many cases, is surprisingly accurate. But that’s not always true when it comes to real estate. Like in other states, Indiana statutes provide a mechanism whereby someone who occupies another’s land for a long time might eventually gain legal ownership of the land. This mechanism is known as “adverse possession”, and it arises more often than one might expect, especially concerning large parcels of real estate. 

What is Adverse Possession?

Adverse possession is an established doctrine of Indiana statutory and common law that allows someone who has occupied certain property for a long, continuous period of time, without the true owner’s permission, to claim legal title of the property. The doctrine stems from the generally accepted policy that land shouldn’t sit unused, and those who treat it as their own for long enough may eventually claim actual ownership of the land outright.

Indiana courts have recognized various forms of adverse possession for over a century. See e.g., Worthley v. Burbanks, 45 N.E. 779 (Ind. 1897). However, in 2005, the Indiana Supreme Court handed down its opinion in Fraley v. Minger,[1] which examined the development of adverse possession precedents and synthesized its requirements into four essential elements:

• Control – Exercising use and control of the property consistent with how a true owner would use the land.
• Intent – Demonstrating intent to claim ownership of the property superior to anyone else, especially the legal owner.
• Notice – Using the property in a way that would give the legal owner actual or constructive notice of the claim.
• Duration – Satisfying all of the above continuously for the statutorily-prescribed period of 10 years.

Indiana’s General Assembly also added an additional element: the claimant must have either paid the property taxes on the disputed land during the 10-year period, or at least reasonably believed in good faith that they were paying them.

Control: The Trickiest Element

While each element of the adverse possession analysis deserves its own discussion, this article focuses on the one that causes the most confusion and dispute: control. What does it mean to possess and control land in a way that satisfies the analysis?

When faced with this issue, Indiana courts begin by looking at the character of the land in dispute. To satisfy the element, the claimant must exercise a level of control over the disputed parcel that is “normal and customary considering the characteristics of the land.” Fraley, 829 N.E.2d at 486. But what’s normal and customary for one piece of land might be different from another. For example.

• Residential Property: Mowing, weeding, or other upkeep activities alone usually do not qualify as “control” sufficient to satisfy the element. Even parking a car on the land or cutting grass for decades might not count. These sorts of activities are factors, though, and courts will typically find the control element satisfied if some sort of permanent improvement (like a fence or a portion of a building) encroaches onto the claimed land.
• Farmland or Rural Property: The standard is somewhat lowered, but still requires consistent, typical use by the claimant. Farming, grazing animals, or maintaining structures and improvements are facts courts ordinarily look for in these cases.

Common Misconceptions

Many who are familiar with the concept of adverse possession assume that simply by maintaining or improving land for many years automatically creates ownership rights in that land. But Indiana courts are careful not to divest owners lightly. While courts don’t like to see land go unused, they’re even more reluctant to strip rightful owners of their property without clear justification. After all, record ownership of land remains the “highest evidence of ownership”, while “mere possession is the lowest evidence of ownership.” McCarty v. Sheets, 423 N.E.2d 297, 300 (Ind. 1981).

Regardless of the type of land, though, consistency of use is always essential. Sporadic activity, even if done over a long period of time, won’t satisfy the test for the “control” element. Cases like Beaver v. Vandall[2] and Moseley v. Trustees of Larkin Baptist Church,[3] demonstrate how Indiana appellate courts consistently reject claims based on occasional landscaping and general upkeep. Without consistent use or a permanent improvement/structure marking the claimant’s control, adverse possession usually fails.

Practical Takeaways for Landowners and Neighbors

• Don’t assume that mowing, landscaping, or similar upkeep equates to ownership. Routine maintenance, even over decades, usually isn’t enough to satisfy the test for “control”, which is an essential element to any adverse possession claim.
• Fences and other permanent structures are key. Permanent features of property that encroach onto a neighboring property tend to be decisive in the analysis.
• Keep an updated survey of your property. Apparent boundary lines can shift over time through development, fence replacement, or past surveying errors. Having a relatively current survey is often the best way to prevent misunderstandings regarding ownership rights.
• Keep all tax records associated with your property. As noted above, even if an adverse possession claimant satisfies the four elements from Fraley, they still must demonstrate that they either paid the property taxes for the disputed land or believed in good faith that they did so. Therefore, keeping organized and continuous tax records can be the deciding factor in an adverse possession case.

Final Thoughts

Adverse possession is a powerful but narrowly applied doctrine. Indiana courts have made clear that while the law can sometimes reward those who claim land as their own and put it to productive use, it doesn’t do so lightly.

If you’re facing a boundary or encroachment issue, or if you’re wondering whether you’ve lost (or gained) ownership rights through adverse possession, contact a member of Barrett McNagny’s Real Estate team listed below.

[1] 829 N.E.2d 476 (Ind. 2005).

[2] 547 N.E.2d 802, 803 (Ind. 1989).

[3] 155 N.E.3d 1221, 1222 (Ind. Ct. App. 2020), trans. denied.