Adverse Possession Flashcards
Essay - Adverse Possession
Under adverse possession, a person can obtain title to real property by possessing it for a statutorily set period of time; possession must be continuous, open and notorious, actual and exclusive, and hostile
Elements of Adverse Possession
COAH
C: Continuous
O: Open and notorious
A: Actual and exclusive
H: Hostile
2+ possessors acting together = take title as tenants in common
Can’t adversely possess government-owned land
What is Continuous Use? (C)
Continuous Use - doesn’t need to be constant use IF possession is of type that usual owner would do (ex. if summer home, allowed to only adversely possess during summer)
* Tacking is allowed
What is Open and Notorious? (O)
Open and Notorious Use: Possessor’s occupation must be sufficiently apparent to put true owner on notice of trespass
What is Actual and Exclusive Use? (A)
- Actual: If possession if by color of title (invalid/mistaken deed), possessor is in constructive possession of ALL land IF she’s in actual possession of reasonable portion of land
- Exclusive: Possessor isn’t sharing land with true owner or the public
What is Hostile Use? (H)
Hostile Use: Possessor enters land without owner’s permission
* Possessor’s state of mind is irrelevant (doesn’t matter if possessor thought it was their own land)
Co-Tenants: Exclusive possession by a co-tenant isn’t “adverse” because each co-tenant has right to possession of entire property.
* Ouster of other co-tenants –> adverse possession
Tenants: Possession can start permissively (ex. lease) and turn hostile if possessor makes that clear to true owner (but if they simply remain in possession after lease expiration, they’re presumed to have permission of landlord)
Grantors: If grantor stays in possession of land after conveying it, they’re presumed to be there with grantee’s permission (would be weird for grantor to convey land and then adversely possess it)
Claim of Right: If possessor reasonably thinks property belongs to them (due to invalid deed), possession is hostile and adverse.
Adverse Possession - When does Statute of Limitations start running?
When true owner can first file a suit
Does adverse possessor need to pay property taxes?
No, most states don’t require this, but it can be used as evidence supporting a claim of right (where you really thought you owned the property).
When is tacking allowed with adverse possession?
Adverse possessor can tack on his time to predecessor (adverse possessor)’s time IF there is privity between the possessors.
Tacking NOT allowed when possessor gets possession by ousting predecessor.
Privity = any non-hostile nexus (ex. contract, deed, will)
What happens when true owner is “disabled” when adverse possession starts?
Statute of limitations won’t run; however, the disability of true owner must exist when adverse possession first starts.
Common disabilities: infancy, imprisonment, coma
When does statute of limitations run against holder of future interest?
When the interest becomes possessory
(Because future interest holder has no right to possession until prior present estate terminates)
Ex. Grantor’s right of entry: SOL only starts running when grantor asserts his right (this is required for right of entry)
What happens to covenants during an adverse possession?
Minor
If adverse possessor uses land in violation of restrictive covenant, takes free of restriction even if she had knowledge of covenant.
If possesor complies with covenant, takes title subject to covenant restriction.
