Adverse Possession Flashcards Preview

Property II > Adverse Possession > Flashcards

Flashcards in Adverse Possession Deck (23)
Loading flashcards...
1
Q

Elements of Adverse Possession

A
  1. Actual possession
  2. Adverse or hostile under a claim of right
  3. Exclusive
  4. Open and notorious
  5. Continuous
  6. For the statutory period
2
Q

Adverse Possession can

A

Adverse Possession: When there is no other path to ownership…ask: WHO has been occupying the property?

  • Adverse possession can be used as an affirmative defense to prevent stale claims.
  • It can also give rise to an affirmative right in the adverse possessor to bring a claim to have title quieted in him.
  • (Beginning of adverse possession: Code of Hammurabi)
3
Q

Models of Adverse Possession

A

Model Policy Rationale

Limitations model = Specialized statute of limitations, prevents stale claims

Administrative model = Useful method for curing minor title defects; lengthy possession serves to demonstrate true title

Development model = Tool to facilitate economic development; allows for the reallocation of land to productive users

Personhood model = Focus on avoiding injury to adverse possessor; use has given possessor a high personal value; attachment

4
Q

Adverse Possession

(1) ACTUAL POSSESSION

A

(1) ACTUAL POSSESSION

Majority view: what is required for actual possession depends on the type of the land and the nature of the dominion and control that a reasonable landowner would exercise

  • It is possible to adversely possess only the part of the land that is actually possessed

Exception: constructive possession à if the adverse possessor is taking under “color of title” then there can be constructive possession of the property.

  • “Color of title” means an adverse possessor has a claim to the land based on a defective document that purports to convey title
5
Q

Adverse Possession:

(2) ADVERSE OR HOSTILE POSSESSION

A

(2) ADVERSE OR HOSTILE POSSESSION

  1. Requires non-permissive use (if the land is being used with permission then the adverse possession clock is not running)
  2. State of mind

Objective (growing majority rule) –> Possessor’s state of mind is irrelevant as long as (1) using land that is not his and (2) doing so without permission

Good faith –> Possessor must in good faith believe that he owns title to the land

Intentional trespass –> Possessor must

  1. know that he does not own the land and
  2. subjectively intend to take title from the true owner

TX Law –> requires a desire to appropriate the land as one’s own (but the rule is unclear). Mere occupancy is not enough.

Note: Cannot adversely possess something from a government entity

6
Q

Adverse Possession:

(3) EXCLUSIVE POSSESSION

A
  • Possession must not be shared with either the true owner or the general public
  • Absolute exclusivity is not required. The adverse possessor’s possession must be as exclusive as would characterize a normal owner’s use for such land
7
Q

Adverse Possession:

(4) OPEN AND NOTORIOUS

A

(4) OPEN AND NOTORIOUS

The acts of the possessor must be so visible and obvious that a reasonable owner who inspects the land would receive notice of an adverse claim

  • Relevant question is NOT “did they know” BUT “could they have found out?
8
Q

Adverse Possession:

(5) CONTINUOUS POSSESSION

A

(5) CONTINUOUS POSSESSION

Possession must be as continuous or sporadic as those of a reasonable true land owner – does not mandate physical occupation or use every minute

  • Typically, work-related absences are reasonable and will not interrupt continuous possession
  • Summer occupancy also okay
  • Abandonment stops the clock, even if the person comes back
9
Q

Adverse Possession: Continuous Possession Examples

Scenario 1

1994: O is the true owner; A enters adversely
1995: O dies with a will: “to B for life, remainder to C”
2010: B dies, never having entered Blackacre

A

** 10-year SOL. O holds in FSA.**

A owns Blackacre in FSA (acquired in 2004) – Life estate was created after the adverse possession began. C could have brought action against B for waste

10
Q

Adverse Possession: Continuous Possession Examples

Scenario 2

1994: O is the true owner
1995: O dies with a will: “to B for life, remainder to C”
1996: A enters adversely
2010: B dies, never having entered Blackacre

A

C owns in FSA. All A was going for was a life estate pur autre vie

When B died, time restarted. Now it’s adverse possession against C.

11
Q

Adverse Possession:

TACKING

A

Tacking –> there must be privity between the successive possessors in order to allow for tacking of time in possession

  • Prior person had to meet all the elements of adverse possession too
  • Privity = some reasonable connection between successive occupants of real property. There is privity if there is (1) a voluntary transfer of an estate or of possession between the possessors (2) by deed, will, intestate succession, or delivery of possession.
12
Q

Adverse Possession: Tacking Samples

Scenario 1

2000: O is the owner; A enters adversely
2007: B says “get out!” A feels threatened and leaves. B enters possession.

In 2010: _____________.

A

O is the owner – A did not transfer anything to B.

10-year SOL. O holds in FSA.

Nobody has successfully adversely possessed.

13
Q

Adverse Possession: Tacking Samples

Scenario 2

2000: O is the owner; A enters adversely
2007: A leaves the property to move in with her sister C

2007 + 6 months: B takes possession

2010:

A

O is the owner. A did not transfer anything to B.

14
Q

Adverse Possession: Tacking Samples

Scenario 3 (abandonment)

2000: O is the owner; A enters adversely
2007: A leaves the property to move in with her sister C

2007 + 6 months: B takes possession

2008: A re-takes possession of the property and removes B

When can A take title under adverse possession?

A
  1. A abandoned the property, which stopped the clock. It restarts when she takes possession again.
15
Q

Adverse Possession: Tacking Samples

Scenario 4 (forcible removal)

2000: O is the owner; A enters adversely
2007: B says “get out!” A feels threatened and leaves. B enters possession.

2007 + 6 months: A re-takes possession of the property and removes B

When can A take title under adverse possession?

A

2 scenarios

2010 + 6 months: A was removed, did not abandon. Clock stopped for 6 months.
2010: Because A was removed, B should not be able to harm A. Clock doesn’t stop even though A was not in possession.

16
Q

Adverse Possession:

(6) FOR THE STATUTORY PERIOD

A

(6) FOR THE STATUTORY PERIOD

Average period is 10 years. Means that all of the elements must be present for this length of time.

At the end of the statutory period…

  • Title is gained by the adverse possessor
    • New title, not one derived from the formal owner
    • Usually FSA (but may be something lesser if the fee was already divided as a present estate and future interest)
  • Once the adverse possession is accomplished, the law assumes that the running of the limitations period transfers all rights from the prior owner to the new owner
17
Q

Adverse Possession in TX

A
  • Must show regular adverse possession elements for 10 years unless 3 yr or 5 yr SOL applies
  • 3-yr, 5-yr Statute in TX

TX Civil Practice and Remedies Code:

“Adverse possession” = (1) actual and visible appropriation of real property (2) commenced and continued under a claim of right that is (3) inconsistent with and is hostile to the claim of another person
“Peaceable possession” = (1) possession of real property that is continuous and (2) not interrupted by an adverse suit to recover the prpoperty

18
Q

Adverse Possession in TX:

3-year “Title or Color of Title” Statute

A

3-year “Title or Color of Title” Statute: a person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues (Meaning: when all the elements are met)

Title of Color of Title –> requires a deed that describes the property being possessed AND…

  • The deed cannot be void on its face –> complies with SOF
  • The deed cannot be void ab initio (“from the beginning”) –> no forgery or invalid delivery
  • The deed cannot be a result of any intrinsic fraud or unfairness –> second in time chain can’t rely on the 3 year statute
  • The deed cannot be missing the acknowledgment (notarized seal whereby the grantor swears he is who he says he is)
  • The deed must link up to the chain of title tracing back to the sovereign

Basically, everything here must be perfect except for one tiny flaw, such as failing to properly record!

19
Q

Adverse Possession in TX:

5 year “Duly Registered Deed and Payment of Taxes” statute

A

**5 year “Duly Registered Deed and Payment of Taxes” statute: **a person has 5 years to recover real property held in peaceable and adverse possession by another who:

  • Cultivates, uses or enjoys the property (same as actual possession)
  • Pays applicable taxes on the property
  • Claims the property under a duly registered deed
    • Deed must describe the property being possessed
    • Deed cannot be void on its face à complies with SOF
    • Deed cannot be a forgery or based on a forged power of attorney
    • Deed must be recorded
    • Cannot be a quitclaim deed

**A scenario where this can be used is if the deed lacks a valid delivery. **

20
Q

Adverse Possession in TX:

10-year “Bare Possession” Statute

A

10 year “Bare Possession” statute: a person may bring suit

  • Not later than 10 years after the day the cause of action accrues
  • To recover real property held in peaceable and adverse possession by another
  • Who cultivates, uses or enjoys the property –> actual possession
21
Q

Adverse Possession in TX:

10-Year “Bare Possession” Statute

Is constructive possession possible?

How much land can adverse possessor possibly take?

A

Is constructive possession possible?

  • If the possessor has a title instrument, then his claim extends to the boundaries specified in the instrument
  • If no title instrument, constructive possession is not possible

How much land can adverse possessor possibly take?

  • If possessor has a title instrument, he can constructively possess the entire property described in the document.
  • If possessor is without a title instrument, his claim is limited by statute to 160 acres, including improvements, unless the number of acres actually and deliberately enclosed exceeds 160.
    • If the number of enclosed acres exceeds 160 acres, the adverse possession claim extends to the real property actually enclosed
    • Really, the possessor will get whatever he actually possesses (max is 160)
22
Q

Adverse Possession in TX:

What tolls the SOL?

A

Tolling Limitations: Stopping the clock

(1) JUDICIAL ACTION

  • Judicial action (filing a lawsuit) stops the SOL clock and usually causes it to restart following final judgment.
  • The clock will only pause if the plaintiff fails to pursue his claim and the lawsuit is dismissed for want of prosecution

(2) LEGAL DISABILITIES – minors, unsound mind, active military

Categories defined by statute

In TX, legal disability of the true owner tolls the statute of limitations up to 25 years.

  • A person may not tack one legal disability to another
  • A disability that arises after a limitations period starts does not suspend the running of the period
    • Tolling stops once the original disability lifts
    • Only the original disability affects tolling
    • If both a minor and mentally unsound – mentally unsound governs
23
Q

Adverse Possession in TX:

25 year “notwithstanding disability” statute

A

25 year “notwithstanding disability” statute: a person, regardless of whether the person is or has been under a legal disability, must bring suit no later than 25 years to recover real property held in peaceable and adverse possession

  • At the end of the statutory period…
    • Title is gained by the adverse possessor
    • This is a new title, not one derived from the former owner
    • Usually FSA, but may be something lesser if the fee was already divided as a present estate and a future interest
  • Once adverse possession is accomplished, the law assumes that the running of the limitations period transfers all rights from the prior owner to the new owner