Adverse Possession

Question 1

Adverse Possession

Answer 1

A trespasser may 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

Requirements—trespasser’s possession of the land must be:

1) Continuous for the statutory period—possession must be similar to an ordinary owner’s use of the property
» Daily possession is not required if an ordinary user would not use the property daily (e.g., winter cabin)

2) Open and notorious—trespasser’s possession must be conspicuous, such that the true owner would know of the trespass if he inspected his property regularly
» Owner need not actually know of the trespasser’s use

3) Actual and exclusive—must possess a reasonable portion of the property to the exclusion of the owner and the public

4) Hostile—possession must be without owner’s permission
» No knowledge or intent requirement (i.e., trespasser need not intend to adversely possess)
» Leasehold—if a tenant stays in possession after a lease has expired, he is presumed to have permission (i.e., tenancy at sufferance arises, as opposed to the beginning of an adverse possession period)

Question 2

Tacking

Answer 2

Adverse possessors can tack together successive periods of adverse possession to satisfy the statutory period, even if successive possession was by different adverse possessors
• Must be successive — there cannot be gaps between periods of adverse possession
• Privity — requires privity between successive adverse holders
» Satisfied if subsequent possessor takes by descent, devise, or by deed purporting to convey title
» I.e., tacking not permitted if one adverse claimant ousts the preceding claimant

Question 3

Concurrent Owners/Co-tenants

Answer 3

Co-tenants may not adversely possess each others’ interests unless ouster has occurred.
• I.e., to adversely possess a co-tenant, the co-tenant must be excluded from the land for the statutory period
• The statutory period begins once exclusion begins

Question 4

Statute of Limitations and Disabilities

Answer 4

• Disability — SoL does not begin to run if the true owner was under some disability when the adverse possession began
• Future interests — SoL does not run against future interest holders until the interest becomes possessory

Question 5

Color of Title

Answer 5

A claim of title to property not actually owned
• Adversely possessing part of the property under color of title is sufficient to acquire title to the entire property

Question 6

Restrictive Covenants and Adverse Possession

Answer 6

Will not run with the land if the adverse possessor’s use of land violated the covenant; but covenant will run if the adverse possessor’s use complied with the covenant.

Question 7

Government land

Answer 7

Cannot be acquired through adverse possession.

Question 8

Leasing

Answer 8

Adverse possessors can lease a portion of the land to a third party and still possess the property.

Question 9

Non-marketable Title

Answer 9

Title taken by adverse possession is not marketable, unless there has been an action to quiet title.