27. Adverse Possession

Question 1

What is the difference between easements by prescription and adverse possession?

Answer 1

Easement by prescription
- NOT exclusive use

Adverse possession
- Exclusive use

Question 2

What is required for adverse possession?

Answer 2

(COAH)

1) Continuous possession throughout statutory period
2) Open + Notorious possession
3) Actual possession
4) Exclusive possession
5) Hostile

Question 3

What is required for continuous possession throughout statutory period?

Answer 3

Constant use
- 20 years by default

Not constant use (intermittent)
- ‘Usual’ owner would make use of possession

Tacking Adverse Possessor’s possession + Predecessor’s possessions (privity required)

• Privity (descendent/devisee/deed)
• NO privity (abandonment/Ouster)

Question 4

What is required for open and notorious possession?

Answer 4

1) Type of possession that ‘usual’ owner would make of land

2) Sufficiently apparent to put owner on reasonable notice of trespass

Question 5

What is required for actual possession?

Answer 5

Physical possession of ‘entire’ parcel

Constructive possession of ‘entire’ parcel

1) Possessor has possession of portion of land (reasonably proportionate to whole of land)
2) Possessor has colour of title (document purports to give title, but does not on its face)

Question 6

What is required for exclusive possession?

Answer 6

NOT share with Owner/Public
- Unlike easements

Share with 2 or more persons together => Tenants in common

Question 7

What is required for hostile possession?

Answer 7

NO Owner’s consent
- Possessor’s state of mind (knowledge/mistake of trespass) NOT relevant

Lease/Licence
- Possessor must ‘clearly’ state to Owner his hostile possession (before/after licence)

Co-Tenants

• Possessor must ‘oust’ (explicitly declare to) Co-Tenant of his exclusive dominionship by adverse possession
• OTHERWISE Co-Tenant presumed to have right to possess ALL property

Question 8

What exceptions will prevent adverse possession?

Answer 8

Public land

• Government-owned land
• Land registered under Torrens system

Owner takes action to eject Possessor ‘within Statute of Limitations’

• SoL begins to run when Possessor ‘can’ bring suit (disabled by insanity/imprisonment/infancy BEFORE Possessor’s action first accrued) (NOT AFTER Possessor’s action first accrued => SoL begins to run regardless of disability)
• Future remaindermen’s action has NO cause of action until their estate becomes possessory

Question 9

When will the Possessor become subject to existing restrictive covenants on the land?

Answer 9

Possessor NOT violate covenant => Possessor is subject to covenant