• Key point. A church may become the legal owner of property that it occupies through “adverse possession” if it occupies the property for a sufficient length of time both openly and with an intent to claim ownership adverse to the true owner.

An Arkansas court ruled that a church that occupied a building for several years failed to establish ownership through adverse possession since it did not prove that it occupied the building with an intent to displace the true owner. A private individual purchased a 4.5 acre tract of land in 1949. A single-story church building was located on the property. In 1985, a congregation began using the church building without obtaining permission from the owner. Shortly after occupying the church building, the congregation began cleaning up the premises, which the pastor described as a “wilderness” and “dumping site.” The land was overgrown with vines and littered with storm debris, and the church building was infested with snakes. They cut down trees, cleared out debris, and cleaned up the highway frontage so that the building became visible from the road. They repaired the building by installing central heat and air, and by replacing the roof, siding, windows, and floor. They added a 40-foot building and office. After two years, the property was in “immaculate” condition, and the congregation received compliments for their efforts from the local community. When asked whether he had treated the property as his own, the pastor asserted, “There’s no way that I would have gone to this property and cleared it by hand … if I had assumed we didn’t have business being there, the right to be there, or if the church didn’t have the needed possession.” It was not until 1992 that the landowner informed the congregation that he owned the land and was willing to negotiate a lease with the church. When the parties were unable to negotiate a lease, the landowner sent the pastor a letter demanding that he and the church congregation immediately vacate the property. The church did not vacate the premises. Several months later, the landowner asked a court to eject the congregation from his property. The church asked the court to dismiss the lawsuit, claiming that it owned the church building and surrounding grounds on the basis of “adverse possession.” The court agreed with the church, and the landowner appealed.

The appeals court explained the law of adverse possession in Arkansas as follows:

It is well settled that, in order to establish title by adverse possession [the church] had the burden of proving that [it] had been in possession of the property continuously for more than seven years and that [its] possession was visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. The proof required as to the extent of possession and dominion may vary according to the location and character of the land. It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over [his] own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Whether possession is adverse to the true owner is a question of fact…. For possession to be adverse, it is only necessary that it be hostile in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land. Possession of land will not ordinarily be presumed to be adverse, but rather subservient to the true owner of the land. Therefore, mere possession of land is not enough to adversely possess the land, and there is every presumption that possession of land is in subordination to the holder of the legal title to the land.The intention to hold adversely must be clear, distinct, and unequivocal. Moreover, it is well settled that the trustees of a religious society may acquire title to real property by adverse possession.

The court stressed that the “intent” required for adverse possession is “the intention to claim the land at issue under right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the true owner of the land.” The court concluded that from the time the congregation first occupied the church building in 1985, the congregation “was unsure of the precise nature of its interest in the land and, moreover, recognized that [the landowner] owned the land.” The court noted that the pastor testified that in 1990 he first realized that the church did not have a deed to the land. He testified further that, prior to this time, he made no assumptions about whether the church was on the land with permission or whether the church had purchased the land. He stated, “I didn’t know how or what kind of possession we had.” In order to clarify the matter of the church’s right to occupy the land, the pastor contacted the landowner and asked for a quitclaim deed. The landowner refused, and informed the congregation that he owned the land. The pastor “accepted that as a fact.” The pastor also testified that the congregation first formed an intent to occupy the building in a manner adverse to the landowner’s legal ownership in 1994 when the landowner attempted to evict the congregation from the property.

The court concluded, “Given this testimony by [the pastor], given that a possessor of land does not possess adversely if, while in possession, he recognizes the ownership right of the titleholder to the land, and given that proof of the possessor’s intention to hold adversely must be clear, distinct, and unequivocal and must have lasted seven years, we conclude that the … [church did not have] for seven years the requisite intent to possess the land at issue adversely to [the true landowner] …. Because the church congregation did not possess the land with the requisite intent for seven years, the church congregation did not adversely possess the land.”

Application. Church leaders should recognize that a church can gain, or lose, title to property through adverse possession. If a church openly uses property with an intent to claim an ownership interest superior to the true owner, and does so for the period of time specified by state law, then it may become the lawful owner of the property. Mere possession is not enough. The church must be able to prove that its possession was “adverse.” In many if not most cases, church leaders only intend to occupy property that rightfully belongs to the church. They have no desire to assert a claim to the property that is superior to the interests of the true landowner. Under these circumstances, there is no adverse possession no matter how long a church uses the property. It is also important to note that a church may lose property to a neighboring landowner through adverse possession, if the neighboring landowner occupies a portion of the church’s property for the required length of time both openly and with an intent to claim an ownership interest superior to any lawful owner. Fulkerson v. Van Buren, 961 S.W.2d 780 (Ark. App. 1998). [Corporations]

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