adverse posession Flashcards
what are the elements of adverse possession and define them
- Actual entry and exculsive posession
- open and notoriuous
- adverse
- continuous for the statutory period
define adverse possession
gaining title via trespass; when a tresspasser stays on a landowner’s land for a long enough period of time, the land becomes the property of the trespasser
define the actual entry and exculusive posession element
The adverse possessor must actually enter and possess the land, and that possession must be exclusive against all others, including the rightful owner
define the Open and notorious element
The adverse possessors use of land must be sufficiently open as to give an ORDINARILY DILIGENT OWNER notice of the adverse possession
This does not mean that the actual true owner must have notice, but rather that an AP use the land as an ordinary true owner would use that sort of land
The trespasser publicly and openly treats the property as his own, so that an uniformed observer would reasonably assume that the trespasser is the owner
define the adverse element
The adverse possessor must have the correct MENTAL STATE
The AP cant believe he is there WITH PERMISSION from the true owner
Most jurisdictions require that the AP does not believe he possesses the land with permission from the owner
In other words, he must have a NON PERMISSIVE MENTAL STATE
define the continious for a statory period element of ap
The AP must possess the land continuously for a period of time established by statue or common law
Only the AP needs to occupy the property as an ordinary true owner would occupy that sort of property
It does not require that he always be on the property
The period of time can be INTERRUPTED if one of the other elements is not satisfied
Once the AP’s time has been interrupted, his time of possession must restart, as if he and not been there before
what is the difference between an adverse state of mind vs a claim of right state of mind
adverse= i know i’m trespassing but im here anyway
Claim of right= ‘i think its mine’
what consitutes possessory activites of an AP
You are putting the land to use as a true owner of that specific property would
Ie if its a farm, you need be planting crops
Uses vary according to the character of the land
what does exclusive possession mean?
possession must not be shared with either the true owner of the general public ; and it must be exclusive as would characherize an owner’s normal use for the land
can the trespasser count the time of a PRIOR TRESPASSOR?
yes, via tacking , just needs to be privity of estate between the two
What is the standard for assessing continuity?
Don’t need to be there everyday, it really depends on the character of the land and how one would expect a true owner to use it
The sort of frequency with which the avg, true owner would do
define tacking and what is needed
when successive periods of ap by different persons combine together to satisfy the statutory duration period
tacking is permissible only if the successive claimants are in privity with each other ie when one ap transfers possessory rights to another
what is color of title
usually a faulty deed that is relied on that males you think you have title to the land when you actually dont
Jones v Legan: man tries to reclaim property after 39 years
In 1966, Metts conveyed the real property (lot 31) on their lake subdivision plat, along with other property, to Jones for five dollars
In 1987, the Owens purchased lot 31 for 2000 dollars from Shoaf
In the deed, Shoaf stated when Metts conveyed lot 32 to her by an earlier deed, he did so inadvertently and Metts actually intended to convey lot 31 to Shoaf
The owens claim that after purchasing lot 31 from Shoaf they performed several acts of ownership on the lot
the Owens assert that outside companies asked their permission to access lot 31
In 1998, the Owens conveyed lot 31 to the Legans and in 2004, the legans reconveyed lot 31 back to the owens for the purpose of securing a loan
In 2004 after seeing for the first time that something was going on with lot 31, Jones met with a lawyer
Jones filed an action in ejectment and trespass to try title and sought to quiet tittle of lot 31
In response, the Owens sought title to lot 31 by adverse possession under color of title and also raised the equitable defense of laches
issue: Did the special referee err in holding 1. that the owens acquired title to a piece of property owned by Jones by adverse possession and
ap was met!
Actual possession
Cultivated and improved
Open and notorious
All the things owen did would allow jones, had he exercised ordinary dilliages, to be put on notice
Continuous
The 10 year period from 1987-97
What happens after the 10 years does not matter you dont have to satisfy the elements after the time has been satisfied
Chaplin v sanders - road for trailer park encroaches on eastern lot
the action was about a dispute over a strip of land owned by the Chaplins, forming the western portion of their property and bodering the sanders eastern boundary line
the true boundary line was discovered, and informed the predecessors of the sanders that their driveway encroached upon his land, but they never told the sanders
years later, the chaplines did the same survey and brought action to quiet title to the disputed portion and sough damges.
issue: does a claimants actual noitce of the true owner’s interst in the land posessed negate the element of hostility? does the true owner’s actual knowlege of the claimant’s use of his land satisify the lement of open and notorious?
the possessors subjective belief whether the land possessed is or is not his own and his intent to dispossess or or not dispossess another are irrelevant to a finding of hostility
when the true title owner knows of the possessor’s adverse use throughout the duration of the statutory period, the element of open and notorious is satisfied.
what is an encroachment
represents a tresspass that is not visible to the naked eye
what type of notice is needed to establish open and notorious element for encroachment?
actual noctice via a survey! an encorahcment is usually not visible to the naked eye, so it would be hard for a true owner to gain notice of the trespass without actual notice
can trespassers adversely posess title together?
yes, they would just take title as co owners
what is the estate that the ap gains?
the estate of the true owner that the true owner held on the first day of ap
what would happen if the true owner were to transfer a lesser estate after ap had commened?
the ap is still adverselu posessing the larger estate from day one
ex: the true owner had a fee simple absolute and a year later transfers a life estate to their child. what is the ap adversly posessing?
a fee simple absolute
what happens if on day one of the ap the true owner had an interest in a life estate?
if the AP posesses witin the statotoru period, they would gain a life estate measured by the life of that true owner
what happens if a year into the AP period of a life estate the true owner dies?
the remainderman takes the present interest and that will reset the AP clock
what happens if the true owner has a disabilty that prevents them from excerssisng an adverse possessor?
All states have adopted some sort of disability statute that extends the time of adverse possession based on a recognized disability of a true owner
Disability statues apply where the TRUE OWNER has a disability condition specified by the governing statue ON THE FIRST DAY OF THE ADVERSE POSSESSION
The statue extends the time period required for AP by an amount of time that begins to run as soon as the disability ceases to exist
what conditions are considered a disability under ap statues
its usually specfied by the statute, but usually under the true owner being 18, insane, incarceration
if any of the disabilites exsisted on day one, when does the ap time period start
it doesnt start until the disabilty goes away
how are ways a disability may go a way
someone turns eighteen, someone who is insane dies, a person incarcerated is relased
when the clock starts running after a disability is lifted, what is the time period needed for ap claim to be sucessful?
either the new period desginated in the disability stattue or the orignal from the entry date
WHICHEVER IS LONGER
questions to ask with a disabilty problem
what is the date the disabilty will be removed?
what is date that statory ap would be usually be met in normal conditions?
what is the date that the disabilty statute desginates as the ap to be met?
out of these three, you pick the longest period
what happens if any other disabilities pop up after the ap started possessing the land
ignore them, we are only worried about existing disabilities on DAY ONE OF AP
what are the two jurisdictional approaches to chattel in terms of ap?
- the open and notorious element is treated stricter; its not satisfied unitl the true owner has ACTUAL KNOWLEDGE of the location of the chattell
- discovery rule: courts toll (ie pause) the limitations period until the true owner discovers or SHOULD HAVE DISCOVERED the location of the chattel
what is the diffrence between the stricter open and notirous element and the disovery rule for chattel?
- open and notrious= places the burden on the AP to make the true owner aware of the chattel’s circumstance
- the discovery rule puts the burden on the true owner to show that she had been reasobly dilligenty in attemping to disvoer the whereabouts of the chattell, but its location was such that she should not have been able to discover the chattel until she actually did
