4. Adverse Possession

Question 1

Adverse Possession

Answer 1

A trespasser may acquire title to another’s property without compensation by possessing the property for a specified period, in a manner conflicting with the true owner’s right.

Requirement: trespasser’s possession of the land must be:

o 1. Continuous for the statutory period
♣ Possession must be similar to an ordinary owner’s use of the property
♣ Daily possession is not required if an ordinary user would not use the property daily (e.g. winter cabin)

o 2. Open and notorious
♣ trespasser’s possession must be conspicuous, such that the true owner would know of the trespass if he inspected his property regularly.
♣ Owner need not actually know of the trespasser’s use

o 3. Actual and exclusive
♣ must possess a reasonable portion of the property to the exclusion of the owner and the public

o 4. Hostile
♣ possession must be without owner’s permission
♣ No knowledge or intent requirement (e.g. trespasser need not intend to adversely possess)
♣ Leasehold – if a tenant stays in possession after a lease has expired, he is presumed to have permission (e.g. tenancy at sufferance arises as opposed to the beginning of an adverse possession period).

Question 2

Statute of Limitations

Answer 2

♣ Disability: does not begin to run if the true owner was under some disability when the adverse possession began.

♣ Future interests: does not run against future interest holders until the interest becomes possessory

Question 3

Restrictive Covenants

Answer 3

Restrictive Covenants
♣ Will not run with land if adverse possessor’s use of land violated covenant; but covenant will run if adverse possessor’s use complied with covenant.

Question 4

Color of Title

Answer 4

Color of Title
♣ claim of title to property not actually owned
♣ adversely possessing part of property under color of title is sufficient to acquire title to property

Question 5

Government Land

Answer 5

♣ Cannot be acquired through adverse possession

Question 6

Leasing

Answer 6

♣ Adverse possessors can lease portion of land to third party and still possession property

Question 7

Non-marketable title

Answer 7

♣ Title taken by adverse possession is not marketable, unless action to quiet title

Question 8

Concurrent Owners

Answer 8

♣ Co-tenants may not adversely possess each others’ interests unless ouster has occurred

♣ E.g. to adversely possess a co-tenant, the co-tenant must be excluded from land for the statutory period

♣ Statutory period begins once exclusion begins

Question 9

Tacking

Answer 9

♣ Adverse possessors can tack together successive periods of adverse possession to satisfy the statutory period, even if successive possession was by different adverse possessors

♣ Must be successive – there cannot be gaps between periods of adverse possession

♣ Privity – requires privity between successive adverse holders
• Satisfied if subsequent possessor takes by descent, devise, or by deed purporting to convey title
• E.g. tacking not permitted if one adverse claimant ousts the preceding claimant