‘Invaded interest’: Adverse possession limitations period not reset by sale

The Court of Appeals of Virginia has held that the sale of a property did not affect the possessory period in a case of adverse possession, reversing a contrary order from the trial court.

After the appellant claimed a portion of the subject property by adverse possession, the appellee argued that the 15-year statute of limitation period for adverse possession could not run against him as he had not owned the subject property for 15 years.

“[T]his Court finds, as a matter of law, that the intervening sale to appellee did not affect the possessory period,” Judge Glen A. Huff wrote.

The judge noted that the appeal presented “a novel question under Virginia law” in asking about whether a sale affects the 15-year clock.

“Because the circuit court erroneously dismissed this case on appellee’s statute of limitations plea, it did not reach the merits of appellant’s adverse possession claim,” Huff wrote. “Much remains to be proven in a trial court, and this Court refrains from comment on any such proof or the likelihood that appellant will prevail on the merits of her claim.”

Huff’s opinion in Ho v. Rahman, et al. (VLW 024-7-040) was joined by Judges Clifford L. Athey Jr. and Doris Henderson Causey.

Rahman was represented by Fairfax attorney J. Chapman Petersen, while Ho was represented by Vienna attorney Stephen Domenic Scavuzzo. Neither could be reached for comment by deadline.

Background

Pui Ho purchased her home in Bristow in June 2005. At the time of purchase, the survey map showed “‘[a] solid black line depict[ing] the property boundary as noted in the land records’ on the west side of appellant’s property.”

A wire fence installed by a prior owner in the 1970s was depicted on the map to the west and outside Ho’s boundary line.

Following Ho’s purchase, single-family homes were built to the west. One of the homes was purchased by Rahman in 2010; the wire fence was on his property.

Rahman didn’t enter onto the part of his property east of the wire fence until March 2021, when he tore it down and removed the nearby trees. Per the opinion, it was the first time the fence had been disturbed since its construction.

Ho brought an action to quiet title for the land between the fence and the surveyed property line in September 2021, claiming she had acquired the land by adverse possession or, in the alternative, that a prescriptive easement had been established.

Rahman demurred, arguing both a bill to quiet title and prescriptive easement were inappropriate legal mechanisms.

The circuit court sustained the demurrer with leave to amend.

Ho amended the complaint seeking determination of the boundary line, award of the disputed land and monetary damages.

Rahman filed a plea in bar, arguing the possessory period could not have started until he took ownership in 2010, less than 15 years prior.

The circuit court sustained the plea in bar and Ho appealed.

15-year clock

Ho contended the 15-year period of time necessary to acquire an interest in property by adverse possession begins to run when “the property interest is sufficiently invaded and continues to run regardless of any intervening sale by the rightful owner to someone else.”

But Rahman countered that a sale restarts the period “to allow the new owner the full period of time to defend his invaded interest.”

Huff weighed in, saying the appeal presented a “novel question under Virginia law.”

The judge noted that adverse possession “primarily focuses on the possessor’s occupation of the invaded interest and the nature of such occupation, rather than on the rights of the owner whose interest have been invaded.”

He specifically cited McClanahan’s Adm’r v. Norfolk & W. Ry. Co., a 1918 case stating that the effect of adverse occupancy is the “vesting in an adverse occupant … a new, independent and indefeasible title — one paramount to and good against that of all other persons.”

The possessory period does not run until the interest “has been sufficiently invaded and possessed to satisfy all the elements of adverse possession,” Huff added.

“With these principles taken together it is clear that the adverse possession statute of limitations begins to run when the present possessory interest is sufficiently and continuously invaded, thus allowing its owner to defend the interest,” he wrote.

‘Novel question’

“With these background principles in place, this Court now considers the novel question of what effect, if any, the sale of sufficiently invaded property has on the possessory period,” Huff wrote.

Statutes and precedent point to adverse possession focusing on the interest itself, not the specific owner of the land, and that the possessory period begins to run after the land has been sufficiently invaded by meeting all elements of adverse possession, the judge pointed out.

“Based on those principles, this Court finds that the mere sale of property during the 15-year period of adverse possession does not disrupt the running of the statute of limitations because the land remains sufficiently invaded by the possessor and the invaded ownership interest continuously has a person (or succession of persons) properly situated to defend it for the entire possessory period — first the seller as the previous owner and then the buyer as the new owner who steps into the shoes of the transferor, his successor in interest,” Huff explained.

The 15-year clock therefore does not reset because a person or persons has been continuously in position “to defend the property right and eject the possessor.”

In other words, the buyer, as successor in interest, steps into the seller’s shoes and takes the invaded interest — as is and with all of its defects, the judge said.

“So long as there is someone properly situated to defend the invaded interest — the sole subject of the adverse possession — the statute of limitations will not restart merely because the person entitled and empowered to defend the same interest has changed,” Huff wrote.

With that in mind, Huff turned to the circuit court’s decision to sustain Rahman’s plea in bar that the 15-year period could not have run against him.

“When appellee purchased his property in 2010, he acquired the same property interests as the previous owner, including an already purportedly invaded interest,” the judge wrote.

The property always had an owner to defend it so the purchase “did not restart appellant’s possessory period” as a matter of law.

The judge reversed and remanded the case for further proceedings.