Adverse Possession Flashcards
idea behind adverse possession
Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title to real property. Title by adverse possession results from the operation of the statute of limitations for ejectment. If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, title vests in the possessor.
How to establish adverse possession and acronym
[COAH]
(1) continuous / uninterrupted
– cannot be intermittent periods of occupancy
– does not have to be constant use as long as possession is of a type the usual owner would make
– does not need to be continuous by the same person because AP can tack her own possession onto periods of her predecessors
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(2) open and notorious
– sufficiently apparent to put true owner on notice that trespass is occurring
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(3) actual and exclusive
“Actual” =
— you get the land you actually occupy UNLESS you enter under color of title
Color of title = invalid deed = if you enter by invalid deed, you are in constructive possession of all the land the deed describes as long s you are in actual possession of a reasonable portion of that land
“Exclusive” = possessor not sharing with true owner or the public [two AP may share together and get it as tenants in common]
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(3) hostile [no permission]
must enter without owner’s permission
AP’s state of mind is irrelevant
Explain the “hostility” element with respect to
(1) co-tenants
(2) grantors who stay in possession after conveyance
(3) claim of right
(1) co-tenants
co-tenants need ouster or explicit declaration they are claiming exclusive dominion to create adverse possession; otherwise, a voluntary nonpossesion is not adverse to the other co-tenant because both have the right to possess the whole property
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(2) grantors who stay in possession after conveyance
where a grantor stays in possession of land after conveying it, they are presumed to be there with permission of the grantee
[same with tenant remaining in possession after expiration of lease w/r to landlord]
(3) claim of right
claim of right = invalid deed or some other thing that makes you think you have possession … this does not make the possession non-hostile
when does SOL begin to run against a true owner and when does it not run?
future estates and disabilities
WHEN IT RUNS
Runs when true owner can first bring suit
filing suit will not stop period from running
WHEN IT DOES NOT RUN
SOL does not run against a true owner who is afflicted by a disability AT THE INCEPTION of the adverse possession…. O cannot claim benefit of the disability if the disability did not begin when AP first started possession
Ex: insanity, infancy, imprisonment
what is the rule w/r to an AP paying property taxes?
Most states do not require the adverse possessor to pay taxes on the property, but consider such payment good evidence of a claim of right.
what is tacking and how do you do it?
one adverse possessor may tack his time onto his predecessor’s timeline as long as there is PRIVITY between the adverse possessors
privity = non-hostile nexus, such as contract, deed, or will
no privity = new adverse possessor ousts old adverse possessor
relationship between adverse possession and future interests
when someone has a future estate in land, like a remainder, and they are not presently possessing the land when AP comes, AP’s time starts over when remainder man comes into possession
aka SOL does not run against holder of a future interest until the interest becomes possessory
Ex:
O to A for life, then to B.
BUT:
The event or condition giving rise to a grantor’s right of entry (for example, “To Grantee on condition that if alcohol is ever used on the premises, Grantor shall have the right
to reenter and retake the premises”) does not trigger the statute of limitations for purposes of adverse possession. The statute does not begin to run until the right is asserted by the grantor because, until that time, the grantee’s continued possession of the land is proper.
Effect of covenants in the true owner’s deed on adverse possession
if adverse possessor uses the land in violation of a restrictive covenant in the true owner’s deed for the SOL period, they take free of the restriction
BUT, if Ap uses the land in compliance with the covenant, they take title subject to the restriction in the deed
what land cannot be adversely possessed?
Title to government-owned land and land registered under a Torrens system (in place in a small minority of states, whereby title is estab- lished with a governmental authority that issues title certificates to owners) cannot be acquired by adverse possession.
how to make title marketable after you establish adverse possession?
judicial action for quiet title
seasonal Adverse possession
seasonal use of land can give rise to AP claim
