5) AP Flashcards
adverse possession: elements (6)
1) actual 2) exclusive 3) open and otorious 4) averse or hostile under color of title or claim of right 5) continuous 6) for the statutory period
AP: continuous
continuous use as a regular owner would (dnh to be there every day). –distinct from statutory period
extent of land you get (AP
color of title: full amount in deed claim of right: just what you were actually using
ways to raise AP in lawsuit (2)
as D: defense to ejection suit as P: affirmiatve case to quiet title
F: P bought land 30 yrs ago from parents in law, but only one of them signed deed, both supposed to H: P keeps the land–lack of signature dnm deed insufficient for color of title. . Physical descritption of land suficient.
Romero v. Garcia
AP: adverse or hostile: state of mind
Westmoreland has objective test, just need possession. Minority rule – subjective test
AP: exclusive
exclusive OF THE OWNER (no permission of owner) –NOT: no one else can ever enter it
AP: special rule re gvt
can’t AP vs gvt
F: native Alaskans took over recreational land by building small improvements every other summer H: meets elements of AP use – quality/quantity of acts required depends on character of land in question (rural so less) hostile–objective test N: only got land they were actually using (COR) anthropologist testified that couldn’t own it
Nome 2000 v. Fagerstrom
Brown v. Gobble
F: 2 feet of P’s property is on D’s side of fence. H: AP is found bc meets 6 elements. Objective perspective re adverse/hositle
AP: color of title: def
you thought you had title but there was a defect in the title
AP: color of title: result
you get the WHOLE AREA of land defined in the title as “constructive possession” (contrast: CoR have to show you were acutally using whole area) –time must AP is shorter
AP: statutory period
W: 15 years for COR or 10 years for COT
rship btwn AP and trespass
AP turns T.ers into owners. (T can ripen into AP if you dn sue to eject)
AP: tacking: exception
per Gobble court, if first owner had it for statutory timeframe dnh to tack bc it passes to next owner as already part of parcel)
AP: adverse or hostile: state of mind: minority rule tests (2)
1) intentional dispossession: only have a claim if AP’er knew land wasn’t theirs and still tried to take vs opposite 2) good faith – AP’er must show acting in good faith
AP: adverse or hostile (3)
nonpermissive from owner –presumption of nonpermission if you’re possessing –W: no SoM requirement (so dn require hostile intent/attitude)
AP: statutory period: tolling: “from when COA first accrues”
from when circumstances that led to the lawsuit began. (so which was first? the AP or the tolling condition?)
F: 2 feet of P’s property is on D’s side of fence. H: AP is found bc meets 6 elements. Objective perspective re adverse/hositle
Brown v. Gobble
AP: statutory period: tacking
–allowed in W –can add up time you (or your predecessor) were AP’ing under various owners –2 parties must be in privity
AP: claim of right
you just establish yourself and dnh color of title
AP: adverse or hostile: nonpermission – exception
exception to the PRESUMED non-permission: permission given at some point in the past, continues until revoked
AP: actual
actually using the land –dnh to be constant, just how a true owner would –ex. fence, sig activities
Romero v. Garcia
F: P bought land 30 yrs ago from parents in law, but only one of them signed deed, both supposed to H: P keeps the land–lack of signature dnm deed insufficient for color of title. . Physical descritption of land suficient.
AP: open and notorious
–puts reasonable owner on notice that property being occupied –DN require actual notice
if AP doesn’t work out: other ways to get property from someone in a boundary dispute
–oral agreement –acquiesence –estoppel –laches
AP: extra element
paying property taxes (NOT W.)
AP: stattuory period: tolling: factors (5)
1) infancy 2) insanity 3) incompetence 4) imprisonment 5) absence from state
adverse possession: standard of proof (W)
clear and convincing evidence
Nome 2000 v. Fagerstrom
F: native Alaskans took over recreational land by building small improvements every other summer H: meets elements of AP use – quality/quantity of acts required depends on character of land in question (rural so less) hostile–objective test N: only got land they were actually using (COR) anthropologist testified that couldn’t own it
