Adverse Possession Flashcards
(11 cards)
Adverse Possession
Basic Concept: Possession for statutorily prescribed period can ripen into title of land if the possession is (1) continuous, (2) open and notorious, (3) adverse and exclusive, and (4) hostile.
Adverse Possession Elements
Elements: COAH
Continuous: Uninterrupted, Constant use not required, but use as the owner might use given circumstances. (I.e., iadverse possession of lakehouse just during summer.
Open and Notorious: Apparent enough to put the owner on notice of adverse possession.
Actual and exclusive: Adverse possessor is only entitled to the portion of the land he actually enters and adversely possesses. If the possessor enters under color of title (defective deed), may quiet title and become the rightful owner of the entire property as described in the deed. Exlcusive means the adverse possessor is not sharing with the rightful owner or the public.
“Hostile:” Possessor lacks true owner’s consent to be on the land. Adverse Possessor’s state of mind is irrelevant.
Tacking
Adverse possesor may tack on to predecessor’s time if there is privity of possession between the predecessor AP and the Possessor AP (e.g., subsequent possessor takes by deed, descent, devise).
Tacking is not allowed if the subsequent possessor ousts the first AP or the land is abandoned between APs.
E.g., O owns Blackacre in 2000. Statutory period for AP is 20 years. A adversely possesses from 2000-2010. Then B comes and takes property from A in 2010 and stays until 2020. Even though it has been 20 years, neither party satisfied statutory period requirement because there was no tacking. O still owns Blackacre.
Adverse Possession and Disability
SOL does not run against true owner if TRUE OWNER has a disability AT THE TIME ADVERSE POSSESSION BEGAN.
Examples of disability: Insanity, infancy, imprisonment.
Adverse Possession and Real Covenants
The nature of the title obtained through adverse possession depends on the occupier’s activities on the land.
If an adverse possessor uses the land in violation of a real covenant (i.e., a written promise to do or refrain from doing something on the land), she takes title free of the covenant EVEN IF she had knowledge of it.
However, if she complies with the covenant for the statutory period, she takes title subject to the real covenant. In either case, if an adverse possessor uses land for the limitations period, she DOES take title to the land.
Adverse Possession and Property Taxes
A minority of states requires the adverse possessor to pax taxes on the property.
Hostility
Hostility satisfied if the possessor enters without thetrue owner’s permission. THe AP’s state of mind is irrelevant. If possession begins permissively, it doesn’t become hostile until the possessor makes it clear they are claiming to hold the property hostilely.
Co-tenants–possession by one co-tenant is not “hostile” unless that co-tenant “ousts” the others or explicitly claims they are now the exclusive owner.
Grantor stays in possession of land after conveyance—permission of grantee is presumed and thus is not hostile. Same with a tenant that overstays lease term–permission of landlord presumed.
Claim of Right–possessor entering under a claim of right (reasonably belief that property belongs to them) is considered hostile.
Running of Statute
Statute begins to run when the true owner is first able to bring suit.
Constructive Adverse Possession with Color of Title
If someone has color of title (i.e., a deed or document that looks valid but isn’t) and actually possesses part of the land, they may get constructive possession of the entire parcel described in the deed, only if:
The land is a unitary tract (a single, undivided whole — not separate lots, or physically divided by a road, for example), and
The part they use is a reasonable proportion of the whole, and
The actual use would give notice to the true owner that they’re claiming all of it, not just a small part.
Adverse Possession and Future Interests
The Statute of Limitations doesn’t run against a holder of a future interest until the future interest becomes a present possessory interest.
The event/condition giving rise to the grantor’s right of entry d/n trigger the statute of limitations for purposes of adverse possession. Statute only runs once the of reentry is asserted by the grantor (because until then the grantee’s possession of the land is permissive).
Land That Cannot Be Adversely Possessed
Government-owned land and (in a small minority of states) land registered under a “Torrens” system.
