Adverse Possession

Question 1

What is adverse possession?

Answer 1

A legal way for a trespasser to take good title to property away from the true owner, without the true owners consent.

Question 2

What are the elements of adverse possession?

Answer 2

1. Actual
2. Exclusive
3. Open and notorious
4. adverse and hostile
5. Continuous

Question 3

Actual

Answer 3

Claimant must use the land in the same manner a reasonable person would given its character, location, and nature at a minimum

forest- plant trees, sing to the animals.

Question 4

Exclusive

Answer 4

can’t be shared with the owner or general public.

• the real owner can interrupt, it just cant be mere stepping foot- they cant just step into the bakery, they have to bake the cake.

Question 5

Open and Notorious

Answer 5

NO SECRET POSSESSION: MUST BE VISIBLE

• true owner knows about the possession; OR
• the trespasser publicly and openly treats the property as his own.
  this would be to the point where a uniformed observer reasonably assumed trespasser is the owner.

Question 6

Adverse and hostile

Answer 6

Basically means without the permission of the landowner.
- note, this does not have to mean with aggression or bad intent towards the owner. Instead, “hostile means that the possession is without the permission of the landowner.
- -Split authority,
i. objective test: here the trespassers subjective belefs are irrelevant. must reasonably, objectively appear to treat the property as his own.
ii. subjective test: all objective test is met + trespassers must honestly and in good faith believe that the property belonged to him.

Question 7

Continuous possession

Answer 7

The possession must be continuous for a certain period (depends on jurisdiction)
- required continuous is measured by a reasonable owner standard, so sporadic uses of wild land are usually deemed “continuous.”

Question 8

continious possession- WHEN’S IT LOST?

Answer 8

True owner assers possesion before the adverse possession ripens to title.
trespasser voluntarily relinquishes possession
- cooper hypo in the backyard

subject to tacking rule (next slide)

Question 9

continious possession-tacking and tolling

Answer 9

Tacking- AP can tack on time that AP was on land.

• a. If carol was there for 10 years, and then I come along and stay for 10 years, we can add that time up.

Tolling:- Defense for real owner
- this is when they would assert a disability so their time would extend:
i. minor
ii. incompetent
iii. prison.

Question 10

How can adverse possession be proven? 2 procedural situations:

Answer 10

1. adverse possessor brings a quiet title action to confirm his title. OR
2. they raise the doctrine as a defense if the owner sues to recover possession.