Adverse Possession

Question 1

What is Privity of Possession?

Answer 1

The continuation of possession by mutual consent among successive possessors.

Question 2

What is a disability for the purposes of property?

Answer 2

A disability is an attribute or circumstance of a person to whom a right of action has accrued that is defined by statute to toll the statute of limitations.

Question 3

What is tacking?

Answer 3

Tacking refers to treating consecutive periods of possession by different persons as one continuous period of possession by the current possessor.

Question 4

When does adverse possession occur?

Answer 4

If a person possesses land continuously for the prescribed statutory period in a manner that is actual, exclusive, open and notorious, and hostile under a claim of right, then the title of the owner or of the prior possessor having the right to present possession from the owner is extinguished.

Question 5

How must an adverse possessor act?

Answer 5

• The element of actual possession of the land is satisfied if the adverse claimant conducts himself on the land as the typical owner of that kind of land would conduct herself under similar circumstances.
• If the owner of land has actual notice that an adverse claimant is occupying her land, then the adverse claimant’s possession of the land does not have to be open and notorious.

Question 6

Rules for constructive possession

Answer 6

• An adverse claimant who actually possesses under color of title part of a parcel of land that is otherwise unpossessed has constructive possession of the unpossessed portion described in the legally ineffective deed or judgment.
• If the owner of land actually possesses only part of his land, the owner has constructive possession of the entire unpossessed part, even though an adverse possessor also actually possesses under color of title a part of the land and the unpossessed portion is described in the adverse claimant’s legally ineffective deed or judgment.

Question 7

What happens if adverse possession is successul?

Answer 7

• The title of an adverse claimant is subject to any easements, liens and mortgages that encumbered the property when he took possession of it.
• The title of an adverse claimant is NOT subject to any easements, liens and mortgages that were placed on the property after the adverse possession began.
• The title of an adverse claimant is subject to any future interests held by others when the adverse possession began.