Adverse Possession

Question 1

Adverse Possession:

Answer 1

The doctrine of adverse possession allows ownership to be granted to a person who exercises exclusive physical possession of a piece of property for a certain amount of time.

Question 2

Adverse Possession Elements:

Answer 2

1. Continuous
2. Open & Notorious
3. Actual
4. Hostile
5. Exclusive

Question 3

Continuous:

Answer 3

Possession must be continuous and uninterrupted for a period of time as defined by statute (or, 20 years at common law).
Seasonal or infrequent use may be sufficiently continuous if it is consistent with the type of property that is being possessed (e.g., land at a summer camp).

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 satisfied by any non-hostile nexus (such as blood, contract, deed, or will).
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 defeats privity).

Question 5

Disability of Owner:

Answer 5

The statute of limitations will not run against a true owner who is afflicted with a disability (e.g., insanity, infancy, imprisonment) at the inception of the adverse possession.
Must be afflicted at the inception of the adverse possession.
Once disability is removes, statute of limitations starts over again.

Question 6

Open & Notorious:

Answer 6

Possession must be open and notorious, such that a reasonable true owner would become aware of the claim.
Uses that are hidden (such as underground wiring or piping) are insufficient to satisfy this requirement.
Squatters are not adverse possessors.

Question 7

Actual:

Answer 7

The possessor must make an actual physical entry onto the premises and take possession to start the appropriate statute of limitations.

Question 8

Hostile:

Answer 8

The adverse possessor must possess the land without the owner’s permission and with the intent to claim the land as his own against the claims of others for it to be considered “hostile.”
Most jurisdictions that consider intent will grant title to a possessor who, in good faith, thought he had the legal right to possess (i.e., believed the property was not owned or thought that he owned the property).
The inquire is whether or not, in objective judgment, the possessor was acting as the usual owner would act under the circumstances.

Question 9

Exclusive:

Answer 9

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 10

Constructive Adverse Possession:

Answer 10

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

Question 11

Below Surface Area:

Answer 11

The adverse possessor acquires the rights to the subsurface (e.g., mineral rights), unless those rights belong to a third party.
In order to acquire title to the mineral rights by adverse possession, the possessor would have to mine the minerals and meet the other requirements for adverse possession.

Question 12

Future Interests:

Answer 12

In other words, the adverse possession period does not run against future interests that exist at the time that the adverse possession begins, but it does apply to future interests created from a fee simple absolute estate after the adverse possession has begun.