Adverse Possession Flashcards
What is adverse possession?
When title to real property is obtained by someone without any legal claim to the property through wrongful possession of the property for a statutorily defined period of time, should the rightful owner fail to eject the adverse possessor within the statute of limitations for ejectment.
What are the elements of adverse possession?
For possession to ripen into title, it must be (“C O A H”):
(1) Continuous
(2) Open and notorious
(3) Actual AND exclusive
(4) Hostile
What does it mean for an adverse claimant’s possession to be “continuous”?
An adverse claimant’s possession must be continuous throughout the statutory period. Intermittent periods of occupancy are NOT sufficient.
However, constant use by the claimant is not required as long as possession is of a type that the usual owner would make.
There need NOT be continuous possession by the same person; and adverse possessor can TACK her own possession onto the periods of adverse possession of her predecesors.
What does it mean for an adverse claimant’s possession to be “open and notorious”?
The adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring.
What does it mean for an adverse claimant’s possession to be “actual and exclusive”?
An adverse possessor will gain title only to the land they actually occupy. In some cases, however, actual possession of the entire parcel claimed is not necessary. If an adverse possessor enters under color of title (i.e., by invalid deed), she is deemed to be in constructive possession of all the land that the deed describes, as long as she is in actual possession of a reasonable portion of that land.
Exclusive possession means that the possessor is not sharing with the true owner or the public. Two or more people acting together could succeed in obtaining title by adverse possession; they would take title as tenants in common.
What does it mean for an adverse claimant’s possession to be hostile?
The hostility requirement is satisfied if the possessor enters without the owner’s permission. Note that the adverse possessor’s state of mind is IRRELEVANT. It doesn’t matter whether the possessor actually thought that they were on their own land or knew that they were encroaching on another’s land. When possession starts permissively, possession does not become adverse until the possessor makes clear to the true owner the fact that they are claiming “hostilely.”
What is required for co-tenants to begin adversely possessing another co-tenant’s property interest?
A co-tenant must oust others or make an explicit declaration that they’re claiming exclusive dominion to create adverse possession.
Possession by one co-tenant is not adverse to the other co-tenants voluntarily out of possession because each co-tenant has the right to possession of all the property.
If a grantor stays in possession of land he has conveyed to a grantee, is this adverse possession?
No. Where a grantor stays in possession of land after their conveyance, they are presumed to be there with permission of the grantee.
(Likewise, if a tenant remains in possession after the expiration of a lease, they’re presumed to have permission of the landlord.)
What does it mean for someone to enter another’s property under claim of right? What effect on adverse possession?
A possessor enters under claim of right when they reasonably believe that the property belongs to them, usually because they have an invalid deed. An invalid deed does not give the possessor permission to be on the land.
When someone assumes possession with what they mistakenly believe is valid title, the possession is hostile and adverse.
When does the statute of limitations begin to run for adverse possession?
The statute of limitations begins to run when the true owner can first bring suit. Filing a suit will NOT stop the period from running, however; the suit must be pursued to judgment.
True or false: Most states require the adverse possessor to pay taxes on the property.
False. However, payment of taxes is considered to be good evidence of a claim of right.
What is “tacking” in the context of adverse possession?
One adverse possessor may tack onto his time with the land his predecessor’s time, so long as there is privity between the possessors.
Privity is satisfied by any non-hostile nexus, such as a contract, deed, or will. By contrast, privity is absent when the possessor acquires possession by ousting his predecessor in possession.
What is the legal effect of a true owner’s disability on adverse possession?
The statute of limitations will not run against a true owner who is afflicted by a disability AT THE INCEPTION of the adverse possession (i.e., when the cause of action first accrued). Only the disability of the owner existing at the time the cause of action arose is considered.
What are some common disabilities that may preclude the statute of limitations for adverse possession from beginning to run?
(1) Insanity
(2) Infancy
(3) Imprisonment
The statute of limitations for adverse possession does not run against a holder of a future interest until the interest becomes _______.
possessory
The event or condition giving rise to a grantor’s right of entry (e.g., “To Grantee on condition that if alcohol is ever used on the premises, Grantor shall have the right to reenter and retake the premises”) does not trigger the statute of limitations for purposes of adverse possession. The statute does not begin to run until the right is asserted by the grantor because, until that time, the grantee’s continued possession of the land is proper.
