Titles Flashcards
Adverse Possession
- If owner does not, w/in statutory period, take action to eject possessor who claims adversely to owner, title vests in possessor.
THE ELEMENTS OF ADVERSE POSSESSION
-C O A H.
- For possession to ripen into title, it must be:
* Continuous
* Open and notorious
* Actual and exclusive
* Hostile
Continuous
- Adverse claimant’s possession must be continuous
throughout statutory period. - However, constant use by claimant is not required as long as possession is of a type owner would make.
- No need for continuous possession by same person; adverse possessor can tack her own possession onto adverse possession of her predecessors
Open and Notorious Possession
- Adverse possessor’s occupation must be sufficiently apparent to put true owner on notice trespass is occurring.
Actual and Exclusive
- Adverse possessor will gain title only to land they actually occupy.
- In some cases, actual possession of entire parcel claimed is not necessary.
- If adverse possessor enters under color of title (by invalid deed), she is deemed to be in constructive possession of all land that deed describes, if she is in actual possession of a reasonable portion of that land.
- Exclusive possession: possessor is not sharing w/ true owner/the public.
- 2/more people acting together could succeed in obtaining title by adverse possession; they would take title as tenants in common.
Hostile
- Hostility is satisfied if possessor enters w/o owner’s permission.
- Adverse possessor’s state of mind is irrelevant.
- It doesn’t matter whether the possessor actually thought that they were on their own land/knew that they were encroaching on another’s land.
- When possession starts permissively (ex. by lease), possession does not become adverse until possessor makes clear to true owner they are claiming “hostilely.”
Hostile: Co-Tenants—Ouster Required
- Possession by 1 co-tenant is not adverse to other co-tenants
- A co-tenant must oust others/make an explicit declaration they’re claiming exclusive dominion to create adverse possession.
Hostile: Grantor Stays in Possession—Permission Presumed
- Where grantor stays in possession of land after their conveyance, they’re presumed to be there w/ permission of grantee.
- (Likewise, if tenant remains in possession after expiration of lease, they’re presumed to have permission of LL.)
Hostile: Claim of Right
- Possessor enters under claim of right when they reasonably believe the property belongs to them—usually b/c they have invalid deed.
- Invalid deed does not give possessor permission to be on the land.
- When someone assumes possession with what they mistakenly believe is valid title, possession is hostile & adverse.
- Most states use “claim of right” instead of or interchangeably with “hostile.”
Running of Statute
- SOLs begins to run when true owner can first bring suit.
- Filing suit will not stop period from running, however; suit must be pursued to judgment.
Payment of Property Taxes Generally Not Required
- Most states do not require adverse possessor to pay taxes on the property, but consider such payment good evidence of claim of right.
TACKING
- One adverse possessor may tack on to his time w/ his predecessor’s time, if there is privity between possessors.
- Privity is satisfied by any non-hostile nexus, ex., K, deed, or will.
- Privity is absent when possessor acquires possession by ousting his predecessor in possession.
DISABILITIES
- SOLs will not run against a true owner who is afflicted by a disability at inception of adverse possession (when COA first accrued).
- Only disability of owner existing at time COA arose is considered.
ADVERSE POSSESSION AND FUTURE INTERESTS
SOLs does not run against holder of a future interest until interest becomes possessory.
Tip:
Event/condition giving rise to grantor’s right of entry (ex. “To Grantee on condition that if alcohol is ever used on premises, Grantor shall have right to reenter & retake premises”) does not trigger SOLs for purposes of adverse possession. Statute does not begin to run until right is asserted by grantor b/c, until that time, grantee’s continued possession of land is proper.
