Adverse Possession

Question 1

Does the SOL for adverse possession run against a true owner of the property who was afflicated with a disability at the inception of the adverse possession?

Answer 1

NO.

The statute of limitations for adverse possession does not run against a true owner of the property who was afflicted with a disability at the inception of the adverse possession. Insanity, infancy, and imprisonment are disabilities that toll the statute of limitations until the disability is removed.

Question 2

What are considered disabilities for purposes of tolling the SOL for adverse possession?

Answer 2

Insanity, infancy, and imprisonment are disabilities that toll the statute of limitations until the disability is removed.

Question 3

To acquire title to another’s land by adverse possession, a person’s possession of the land must be:

Answer 3

OCEAN

Open and notorious – apparent or visible to a reasonable owner

Continuous – uninterrupted for the statutory period

Exclusive – not shared with the owner

Actual – physical presence on the portion of the land to be adversely possessed

Non-permissive – hostile and adverse to the owner

Question 4

Tacking

Answer 4

An adverse possessor may tack on his predecessor’s time in order to satisfy the statutory period, as long as there is privity between successive possessors.

Privity is satisfied if the possessor takes by any non-hostile means (such as descent, devise, contract, or deed). The periods of possession must pass directly from one possessor to the next without any gaps.

Tacking is not allowed when there is an actual, wrongful exclusion of a party entitled to possession from the property (ouster).

Question 5

For purposes of tacking and adverse possession, when is privitiy satisfied?

Answer 5

Privity is satisfied if the possessor takes by any non-hostile means (such as descent, devise, contract, or deed). The periods of possession must pass directly from one possessor to the next without any gaps.

Question 6

Adverse Possession - Hostile

Answer 6

The adverse possessor must possess the land without the owner’s permission.

• The majority of JXs do not require that the possession be hostile in the sense that the possessor purposefully seeks to defeat the owner’s title.
• Instead, the possessor, by possessing the land, must objectively demonstrate an intent to claim the land as his own, regardless of his subjective intent.
• In jurisdictions that consider the possessor’s subjective intent, some require a possessor to believe, in good faith, that he has the legal right to possess (i.e., believes that the property is not owned or thinks that he owns the property).
• Others require the possessor to act in bad faith (i.e., aggressive trespass).

Question 7

Adverse Possession - Exclusive

Answer 7

Possession cannot be shared with the true owner, although two or more people can join together to create a tenancy in common by adverse possession.

Question 8

Adverse Possession - Actual, Open, and Notorious

Answer 8

Possession must be open and notorious, such that a reasonable true owner would become aware of the claim.

Uses that are hidden are insufficient to satisfy this requirement.

Question 9

AP - Scope of Possession

Constructive Adverse Possession

Answer 9

If a person enters property under color of title(i.e., a facially valid will or deed) andactually possesses only a portion of the property, then constructive adverse possession can give title to the whole.

The amount possessed must be a reasonable portion of the whole.

Question 10

AP - Scope of Possession

1. Below the Surface Area
2. Future Interests

Answer 10

1. The adverse possessor acquires the rights to the subsurface (e.g., mineral rights), unless those rights belong to a third party.
2. The adverse possessor acquires the estate held by the person who has legal possession at the time that the adverse possession began.
   * The adverse possession period does not run against a future interest that exists at the time that the adverse possession begins, but it does begin to run against a future interest created from a fee simple absolute estate after the adverse possession has begun.

Question 11

Must the property owner be aware of the adverse possession of her property or that the adverse possessor notify the property owner of her possession of the property?

Answer 11

NO.

There is no requirement that the property owner be aware of the adverse possession of her property or that the adverse possessor notify the property owner of his possession of the property.

The adverse possessor must merely use the property in the same manner as an owner would and thereby provide the owner with notice of his use if the owner were to visit the property.