Adverse Possession Flashcards
Adverse Possession
Allows a trespasser to 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 rights.
5 Requirements for Adverse Possession
- Actual Possession
- Exclusive
- Open and Notorious
- Hostile – claim of right / color of title
- Continuous
What is actual possession?
Actual possession means that the person claiming to be an adverse possessor must physically use the land in the same way a reasonable owner would.
Does occupant live on the land? Cultivate it? Improve it?
Actual poss. diff. if farm or an apartment
What is exclusive possession?
Possession can’t be shared with either the true owner (can’t be using the land) or another adverse possessor (neither would be in exclusive possession).
How can the true owner destroy exclusivity? (5)
1) True owner could physically occupy the property to destroy exclusivity
2) Removing fences
3) Some courts have held that changing the locks destroys exclusivity
4) Storing items in empty lot
5) If the land is being used by the public, also would destroy exclusivity
What is open and notorious possession?
The true owner has to be able to actually know or have an opportunity to discover that their land is being adversely possessed
Owner need not actually know of the trespasser’s use
How does an A/P satisfy the open and notorious requirement?
Send mail; pay property taxes; make improvements; pay for utilities; erect a mailbox; gardening; putting up fences
What is hostile possession? (3)
A/P must claim to be there as a matter of right without permission from the owner.
1) Claim of Right (Maj.)
2) Intent (Min.)
3) Color of Title
What is claim of right? (Majority obj. test – Connecticut Doctrine)
Courts don’t care what the A/P is thinking, they only care about whether an objective person could say that the A/P treats the land as their own for the entirety of the statutory period and is thus entitled to the land.
What is good faith intent? (Min. test)
Good Faith Intent Test:
To be a hostile A/P, the occupant must believe in good faith that he or she has a right to be there.
What is bad faith intent? – Land Piracy Test (Minority test – Maine Doctrine)
Bad Faith Intent Test (Land Piracy Test):
A/P is not innocent or mistaken or acting in good faith. Rather, they are there and intend to be there and wrest title from the true owner by A/P. Ultimately rewards wrongful conduct so long as they intend to be there
What is Color of Title?
Title that appears valid but in actuality is ineffective.
What is continuous possession?
Must have all of these element continuously for the entire statutory period to be an A/P.
What is the statute of limitations for A/P?
Set by statute
What are two exceptions to the SoL?
1) Disability:
SoL does not begin to run if the true owner was under some disability when the A/P begins
2) Future Interests:
SoL does not run against future interest holders until the interest becomes possessory (Harper v. Paradise)
A/P and restrictive covenants
Will not run with the land if the A/P’s use of the land violates the covenant
Will run if A/P’s use complied with the covenant
Can government land be acquired through A/P?
NO
What is Tacking?
Howard v. Kunto
Different adverse possessors can tack together successive periods of adverse possession to satisfy statutory requirements.
What are the requirements for tacking?
Howard v. Kunto
1) Must be successive
there cannot gaps between periods of adverse possession
2) Privity Required
there must be privity between successive adverse possessors
(i.e., deed conveying title)
Can concurrent owners be A/P’s?
NO
To adversely possess a co-tenant, the co-tenant must be excluded from the land for the statutory period, which begins once exclusion begins
Are there any exceptions to the Open and Notorious requirement?
(Manillo v. Gorski)
If there is a minor encroachment, then the person being adversely possessed against needs actual knowledge to constitute open and notorious.
Does an A/P’s knowledge of the true owner affect his A/P? (Walling v. Przybylo)
An adverse possessor’s actual knowledge of the true owner is not fatal to an adverse possession claim.
