Adverse Possession

Question 1

Adverse Possession

Answer 1

Def. Method of transferring an interest in land without the prior owners consent.

Theory: Statute of Limitations - Adverse possessor may acquire title after the statutory period for an action to reclaim the property runs.

Question 2

Adverse Possession (Elements)

Answer 2

1. Actual Entry
2. Open and Notorious
3. Hostile
4. Statutory period
5. Claim of Title.

Question 3

1) Entry

Answer 3

actual and exclusive

a. Entry (without permission) creates a Cause of Action, for trespass, and triggers the statute.
b. Entry must be exclusive (Adverse to the owner)

Question 4

2) Open and notorious (REASONABLENESS TEST)

Answer 4

a. Put reasonably attentive owners on notice that someone is on their property. (FENCES or CROPs - Usually statutory requirements)
b. Constructive, not actual notice (objective test of the Reasonable Person).

Question 5

3) Continuous for the statutory period

Answer 5

a. Continuous (but not constant, or uninterrupted)

b. Possessor must use the property as would a true owner under the circumstances.

Question 6

4) Hostile / Adverse and under claim of right.

Answer 6

a. Hostile and under a claim of title.
b. State of Mind (3 Theories)
i. State of mind is irrelevant (the Objective Standard)
ii. The required state of mind is: “I thought I owned it.” (Good Faith Standard)
iii. The required state of mind is: “I thought I didn’t own it, but I intended to make it mine. (The Aggressive Trespass Standard)

Question 7

Policies of Adverse Possession

Answer 7

• To reward those using the land in a way beneficial to the community.
• To automatically quite all titles which are openly and consistently asserted,
• To provide proof of meritorious titles,
• To correct errors in conveyancing.

Question 8

Mannillo V. Gorski (Mistaken Claim of Title):

Answer 8

Knowing Intentional Hostility “under Claim of right” is not Required.
Entry and Possession for the required time which is:
1) exclusive
2) Continuious
3) Uninterrupted
4) visible and notorious
= Sufficient, even if under a MISTAKEN claim of title.

Question 9

Howard v. Kunto (Requisite Possession)

Answer 9

Ordinary Use of the Property that would indicate ownership of a property of like nature and condition.

Question 10

“Main Doctrine”

Answer 10

Requires a Knowing wrongful Taking.

Question 11

Tacking

Answer 11

Joining of consecutive periods of possession by different people.
- Allowed if there is a relationship between the parties:
PRIVITY OF ESTATE:
intended to convey parcel to the next person
Contract of Sale, Gift, Will, or other inheritance.

Question 12

Disability

Answer 12

• Not relevant unless the Disability existed at time of COA.

Gen rule: Disabled may bring action within 5 years of the Disability being removed.

Removed by:

1) reaching the age of majority
2) becoming of sound mind
3) being released from prison
4) Death.
- No Tacking of disabilities

Question 13

Disability Analysis:

Answer 13

1) What is the Adverse possession Statute of Limitations?
2) Did the disability exist at the time of the COA. and Has the Disability been removed (death or otherwise)?
3) If yes, add -Additional years to year of removal. If No, disability is not removed (SOL for Adverse Possession not Run)
4) If additional years is less time than SOL = Runs

Question 14

Adverse Possession in Chattels

Answer 14

Discovery Rule:
Must Diligently seek the paintings before the Statute Runs.

Burden Placed on the injured party to show reasonable attempts at discovery.
(Objective standard = Reasonably Diligent Owner)

Question 15

Adverse Possession Claim under Color of Title

Answer 15

Claim of ownership pursuant to a WRITTEN DOCUMENT that purports to transfer the property to him.
- Deed (defective in some way)

Question 16

Adverse Possessor Under Color Of Title (Advantages)

Answer 16

• Statutory period is typically shorter
• AP with Color of Title who proves AP claim based on Actual Possession of PART OF THE LAND described in the Document, can claim CONSTRUCTIVE POSSESSION FOR ALL OF THE LAND.
• (CANNOT CLAIM CONSTRUCTIVE POSS. IF OWNERS ACTUAL POSSESSION OF PART OF THE LAND NEGATES IT.)

Question 17

Disability Rule for Test:

Answer 17

TRUE OWNER GETS 5 YEARS FROM THE DATE THE DISABILITY IS REMOVED TO BRING ACTION

Question 18

Adverse possession of Chattels/ Personalty

Due Diligence Rule

Answer 18

After Personal Property Disappears Owner must search diligently for it.
- If the search is abandoned - The Statute Starts to Run.
True Owner Bears the Burden of proof on the issue of discovery.

Question 19

Traditional Rule: SOL for actions for Personal Property does not run until the action ‘ACCRUES’.

Answer 19

Work of Art disappears, COA does not accrue until the owner discovers its whereabouts, and makes a demand for its return. Refusal to return, marks the accrual of the COA for replevin.
Starts the Statute of Limitations.

Question 20

Manillo v. Ghorski

OPEN AND NOTORIOUS

Answer 20

Of Such a Character as to put the reasonably prudent person on notice that is land is in actual possession of another.
+ Open and Notorious not satisfied where:
- Encroachment is small and it is along a common boundary
- ACTUAL NOTICE REQUIRED.