Adverse Possession

Question 1

What is adverse possession?

Answer 1

A legal way to gain ownership of property by occupying it for a specific period under certain conditions.

Question 2

Adverse Possession Elements

Answer 2

1. Actual and Exclusive Possession
2. Open and Notorious Possession
3. Hostile Possession
4. Continuous Possession for the Statutory Period
5. Disability of True Owner

Question 3

Actual and Exclusive Possession.

Answer 3

possessor must physically occupy the land in a way that is typical of an owner and excluded true owner and the public.

(if possessor has color of title (a claim to title based on a defective deed or document), they may be deemed to occupy the entire parcel, even if they only physically occupy a part of it)

Question 4

Define Open and Notorious Possession

Answer 4

Possession must be obvious enough to put the true owner on notice; it cannot be secret or hidden.

Example: Building a fence, cultivating crops, or making visible improvements

Question 5

Define Hostile Possession

Answer 5

Possession must be without the owner’s consent; it can become hostile if the possessor communicates intent to claim ownership.

Goes to state of mind

Question 6

Majority View of possessor’s state of mind for establishing Hostile element (Used in Tiaoga Coal Co.)

Answer 6

hostile possession does not require bad faith or good faith—only that the possessor act as if they own the property without owner’s consent.

Question 7

Minority View of possessor’s state of mind for establishing Hostile element (Used in Fulkerson v. VanBuren)

Answer 7

Must show clear, distinct, and unequivocal intention to hold the parcel.

Some states require through good faith (believing they had a right to the property) or bad faith (knowing they were trespassing but doing it anyway)

Question 8

What is Continuous Possession for the Statutory Period?

Answer 8

The possessor must use the property continuously, meaning uninterupted for the appropriate statutory period as an ordinary owner would.

specific period varies by jurisdiction

Question 9

What is tacking in the context of adverse possession? (Hint: it modifies, used in Howard v. Kunto)

Answer 9

If the possessor leaves before the period is up, they can tack their time onto that of a predecessor in interest, as long as there is privity.

privity = non-hostile nexus such as descent, k, deed, or will.

exception to privity = ouster. If possessed by ousting cannot claim tacking.

Question 10

How does Dissability affect adverse possession? (Hint: it modifies)

Answer 10

SoL will not run against actual owner whois afflicted by a dissabilty at the inception of the adverse possession

Dissabilities will be defined by statute. Usually include infancy, insanity and imprisonment

Question 11

Issue: Marketability of Title Acquired by Adverse Possession
What must one who acquired title legitimately do before they sell to avoid conveying an unmarketable title.

Answer 11

They must go to court to quiet title to officially establish ownership in the record before selling

Question 12

List justifications for adverse possession.

Answer 12

1. Prevent Frivolous Claims
2. Correct Title Defects
3. Encourage Development
4. Protect Personhood

Question 13

Fulkerson v. Van Buren
(minority view of state of mind)

Answer 13

church occupied a piece of land, using it for several years, believing it was their own. true owner, allowed them to stay initially. When he later informed them that they did not own the land, the church continued to use it but did not clearly express intent to claim it adversely. Church lost.

Under the minority rule, mere occupation is not enough; the possessor must clearly assert their claim of ownership.

Question 14

Howard v. Kunto (tacking)

Answer 14

Howard purchased a beach house based on a deed that inaccurately described the property’s boundaries. Howard and his predecessors had occupied the land for several years, but technically, they were occupying a neighboring lot. true owner discovered discrepancy, sued to eject Howard.

Holding: court ruled in favor of Howard, allowing him to tack the possession period of his predecessors to meet the statutory period for adverse possession (privity) and emphasized that the type of use must be consistent with how the property is typically used (e.g., seasonal use of a beach house can still count as continuous possession).

Question 15

What does the case Howard v. Kunto clarify about the continuity requirement?

Answer 15

The continuity requirement is measured by the character of the property, so seasonal use can still meet the standard.

Question 16

Tioga Coal Co., v Supermarkets
(majority view of state of mind)

Answer 16

Tioga Coal Co. used strip of land for several years believing it was a public street. treated it as their own, fencing it off and using it to access their property. land was actually owned by a nearby supermarket, but the supermarket never acted to reclaim it.

Holding: The court ruled Tioga could claim adverse possession despite their lack of intent to take the land bc in the majority view the possessor’s state of mind is irrelevant. The focus is on the outward appearance of possession, not the possessor’s subjective intent.

Question 17

Constructive Adverse Possession

Answer 17

Advere Possessor has color of title when when claim to land is based on a deed that is defective. Advantage: even if they physically accupy only part of the land in the deed they are considered constructive possessor of the entire parcel decribed.

Question 18

Adverse Possession of Chattel