Adverse Possession

Originally published in the November 2004 issue of the ATG concept.

ATG is generally reluctant to insure property where the only basis for ownership interest is through adverse possession. Adverse possession is a cause of action in a quiet title suit for declaratory judgment, or an affirmative defense, but not an automatically accruing property right (see statute 735 ILCS 5/13-101 under the Real Actions subpart of the Code of Civil Procedure). Thus, to acquire title by adverse possession, a person in possession of property must obtain a judgment finding him or her to be the titleholder.

On rare occasions, ATG may be able to insure a title defect if the elements of adverse possession could probably be proved to defend title. If you think that a property you wish to insure falls into this category, you must call the Underwriting Department first to discuss it and obtain approval to insure on this basis. ATG does not insure entire tracts of land when adverse possession is the only defense but will consider insuring strips, gaps, and overlaps, depending upon the facts.

If you receive approval, then you must draft an affidavit asserting that the elements of adverse possession exist and provide detailed facts demonstrating the presence of those elements. When drafting an affidavit of adverse possession, bear in mind that it serves the same purpose as a witness testifying in court and should provide the same testimony. Thus, it must provide many detailed facts that could lead a trier of fact to find that the elements of adverse possession had been proved. Once drafted and before anyone signs it, the Underwriting Department must approve the affidavit for use. Because the majority of affidavits are not approved upon the first submission, plan for this process to require two or more drafts. The Underwriting Department is available to answer questions about this process, review affidavits, and provide approval to insure property using adverse possession as a theory. Please call with any questions.

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[Last update: 10-31-11]

Posted on: Mon, 10/31/2011 - 9:28am