Adverse possession

Question 1

What is adverse possession?

Answer 1

Occupancy that begins as a trespass and grows into possession. This can be brought as a cause of action (suing for quite title) or an affirmative defense

Question 2

What are the justifications for Adverse possession?

Answer 2

○ Preventing frivolous claims
○ Correcting title defects
○ Encouraging development
○ Protecting personhood

Question 3

What are the elements of adverse possession?

Answer 3

Actual and exclusive
open and notorious
Continuous
for the statutory period

Question 4

Actual

Answer 4

The claimant must physically use the land in the same manner that a reasonable person would. Based on character, location, and nature.

Question 5

Exclusive

Answer 5

Cannot be shared with the owner or public in general, others can’t also be trespassing or occupying, does not include those invited onto the land.

Question 6

Open and Notorious

Answer 6

Possession must be visible and obvious, such as if the owner made a reasonable inspection they would become aware of the adverse claim

Question 7

Adverse and hostile

Answer 7

Not authorized by owner.

Question 8

Bad faith (minority)

Answer 8

Possessor knows that they do not have the right to possess the land.

Question 9

Good faith (minority)

Answer 9

Possessory believes that they have the right to own the land.

Question 10

Objective test (adverse and hostile)

Answer 10

The state of mind does not matter.

Question 11

Continuous for the statutory period.

Answer 11

As continuous as a reasonable owner would, given the character and location of the land

Question 12

Tacking

Answer 12

when multiple successive adverse occupants add their possession together to meet the statutory period. This requires privity.

Question 13

Privity

Answer 13

Some reasonable relationship between successive possessors (deed, will, etc.)

Question 14

Disability (adverse possession)

Answer 14

May extend a statutory period only when it exists at the beginning of the adverse possession. Death ends all disabilities, disabilities can’t be tacked, and disabilities won’t shorten the statutory period.

Question 15

Types of Disability

Answer 15

○ Unsound mind
○ Imprisonment
○ Minority (under-ages)
○ Military-service
○ Out-of-State residence

Question 16

Color of title

Answer 16

color of title refers to when someone is on the land under a deed, a judgment, or another written document that is invalid for some reason

Question 17

What does color of title change?

Answer 17

Normally an adverse possessor only gains title to the land that they have used. However, if an adverse possessor has a bad document giving title to land (through fraud, mistake, or another reason), then, under color of title, they get title to the entire land. This serves to correct title defects, a justification for adverse possession

Question 18

Statutory periods for disability.

Answer 18

Either however long the statutory period is or whenever the disability ends plus the disability statute. Whichever is longer but the time can never be shorter than the statutory period.