Adverse Possession

Question 1

Adverse Possession

Answer 1

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.

Question 2

5 Requirements for Adverse Possession

Answer 2

1. Actual Possession
2. Exclusive
3. Open and Notorious
4. Hostile – claim of right / color of title
5. Continuous

Question 3

What is actual possession?

Answer 3

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

Question 4

What is exclusive possession?

Answer 4

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).

Question 5

How can the true owner destroy exclusivity? (5)

Answer 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

Question 6

What is open and notorious possession?

Answer 6

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

Question 7

How does an A/P satisfy the open and notorious requirement?

Answer 7

Send mail; pay property taxes; make improvements; pay for utilities; erect a mailbox; gardening; putting up fences

Question 8

What is hostile possession? (3)

Answer 8

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

Question 9

What is claim of right? (Majority obj. test – Connecticut Doctrine)

Answer 9

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.

Question 10

What is good faith intent? (Min. test)

Answer 10

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.

Question 11

What is bad faith intent? – Land Piracy Test (Minority test – Maine Doctrine)

Answer 11

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

Question 12

What is Color of Title?

Answer 12

Title that appears valid but in actuality is ineffective.

Question 13

What is continuous possession?

Answer 13

Must have all of these element continuously for the entire statutory period to be an A/P.

Question 14

What is the statute of limitations for A/P?

Answer 14

Set by statute

Question 15

What are two exceptions to the SoL?

Answer 15

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)

Question 16

A/P and restrictive covenants

Answer 16

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

Question 17

Can government land be acquired through A/P?

Answer 17

NO

Question 18

What is Tacking?

Howard v. Kunto

Answer 18

Different adverse possessors can tack together successive periods of adverse possession to satisfy statutory requirements.

Question 19

What are the requirements for tacking?

Howard v. Kunto

Answer 19

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)

Question 20

Can concurrent owners be A/P’s?

Answer 20

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

Question 21

Are there any exceptions to the Open and Notorious requirement?
(Manillo v. Gorski)

Answer 21

If there is a minor encroachment, then the person being adversely possessed against needs actual knowledge to constitute open and notorious.

Question 22

Does an A/P’s knowledge of the true owner affect his A/P? (Walling v. Przybylo)

Answer 22

An adverse possessor’s actual knowledge of the true owner is not fatal to an adverse possession claim.