Up until 2011 in Virginia, it was difficult if not impossible to establish the necessary elements to be successful in an adverse possession case against cotenants to a property. While in theory you could prove the necessary steps, in practice, Virginia courts had routinely found that cotenants were unable to establish the open and obvious requirement needed to succeed in adversely possessing the right to the property against a cotenant.
Establishing Precedence in Cotenant Possession in Virginia
This roadblock was removed in 2011 by the Virginia Supreme Court in the case of Harkleroad v. Linkous, 281 Va. 12, 19, 704 S.E.2d 381, 384 (2011). In Harkleroad, the Court established that one cotenant may adversely possess the property from another cotenant. The Court emphasized that the doctrine of adverse possession does not permit a cotenant to be so dilatory as to remain unaware of a claim by another cotenant.
While the logic of the pre-2011 decisions proved sound, the unintended result was that property that was not properly documented and recorded would be left untransferable due to complex and potentially unresolvable title issues. In many communities in the state, a mistrust of, or lack of access to, banks and local government discouraged generations of citizens from properly recording transfers among family members. Many titles were simply passed over through either oral agreement combined with the physical transfer of the paper document, or simply the communal understanding of who possessed the real estate. As generations passed, transfers added up and memories faded, and the problems underlying these real estate titles were only exacerbated.
Why Adverse Possession Action is Beneficial
Property ownership without a clear title can lead to significant challenges when the current owners attempt to sell, finance, or improve the property that was passed down to them outside the use of attorneys, the courts, and local governments. Because it is difficult for the current landowners to prove ownership, they may be unable to access loans and mortgages, entice a buyer to purchase the property for fair value, and build wealth from the land by engaging in commercial activity. It also leaves the property vulnerable to acquisition by real estate developers and bad actors for vastly reduced costs. An adverse possession action might be available to resolve such issues.
If you or someone you love has any questions or needs representation for a property that has been ignored for too long, please don’t hesitate to contact us. The real estate attorneys at ThompsonMcMullan are here to provide the support and expertise you need to navigate the legal journey back to clear title and the value that it provides to a family and its descendants.
