Adverse Possession Flashcards
What are the seven elements of adverse possession?
[ SAEOACC] (1) Statutory Period (For the); (2) Actual Possession (3) Exclusive possession (4) Open and notorious possession (5) Adverse possession (6) Claim of right (under a) (7) Continuous Possession.
What is the statutory period element?
All elements must be met for the duration of the statutory period. Usually 10 years but look for reference to statutory period.
What is tacking?
One adverse possessor can “tack” his or her time onto a previous adverse possessor’s time if the successive possessors are in “privity”
i. Sub-Rule: Privity: Can be established through transfer of the land by purchase, inheritance, or other reasonable connection
What is actual possession?
Satisfied when claimant uses the land in the same manner that a true owner would given its character, location, and nature.
i. Different parts for which different uses are appropriate need separate analysis
ii. Negligible use not enough
iii. Intensive use is enough even if not consistent with what most owners are doing
What is color of title?
Color of title is when the claimant has a claim to land based on a defective document that purports to transfer title, like a deed or will.
i. Rule: In these cases, the claimant is deemed to have “constructive possession” of the entire parcel of the land described in the faulty instrument, even if they only actually possessed part of it.
ii. Tip: Only raise the color of title issue if the claimant does not actually possess all the land
What is exclusive possession?
a. Rule: Satisfied when claimant uses the land exclusive of the general owner and general public
i. Competing possessor defeats exclusivity only if they use the land in a possessory fashion
ii. Intentionally concurrent possession does not defeat exlsuive possession. E.g. joint APers
What is open and notorious possession?
Satisfied when the claimant shows the possession was visible and obvious such that a reasonable owner would be aware of the adverse claim
What is adverse possession?
Satisfied when the claimant shows that they possessed the land without permission from the owner.
What are the three jurisdictional splits for under a claim of right?
a. Objective: state of mind of the claimant irrelevant (majority rule).
b. Bad Faith: meet element only if knowing trespass
c. Good Faith: meet element only if mistaken possession
What is continuous possession?
Satisfied when the claimant shows they continuously used the land as a true owner would, given the character, location, and nature of the land. The focus is on frequency of the use.
