Adverse Possession

Question 1

Adverse Possession - Definition

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

Question 2

Adverse Possession - Requirements

Answer 2

1) Continuous for the Statutory Period
2) Open and Notorious
3) Actual and Exclusive
4) Hostile

Question 3

Adverse Possession - Continuous

Answer 3

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)

Question 4

Adverse Possession - Open and Notorious

Answer 4

Trespasser’s possession must be conspicuous, such that the true owner would know of the trepass if he inspected his property regularly

• Owner need not actually know of the trespasser’s use

Question 5

Adverse Possession - Actual and Exclusive

Answer 5

Must possess a reasonable portion of the property to the exclusion of the owner and the public

Question 6

Adverse Possession - Hostile

Answer 6

Possession must be without owner’s permission

No knowledge or intent requirement (i.e. trespasser need not intent 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 7

Statute of Limitations

Answer 7

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 8

Restrictive Covenants

Answer 8

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

Question 9

Color of Title

Answer 9

A claim of title to property not actually owned, based on a written instrument (e.g. a deed that is void)

• Adversely possessing part of the property under color of title is sufficient to acquire title to the entire property

Question 10

Govt. Land

Answer 10

Cannot be acquired through adverse possession

Question 11

Leasing

Answer 11

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

Question 12

Non-marketable Title

Answer 12

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

Question 13

Tacking

Answer 13

Adverse Possession can tack together successive periods of adverse possession to satisfy the statutory period, even if successive possession was by different adverse possessors

Question 14

Tacking. - Must be Successive

Answer 14

There cannot be gaps between periods of adverse possession

Question 15

Tacking - Privity

Answer 15

Requires privity between successive adverse holders

• Satisfied if subsequent possessor takes by descent, devise, or by deed purporting to convey title

Question 16

Concurrent Owners

Answer 16

Co-tenants may not adversely possess each others’ interests unless ouster has occurred

• i.e. to adversely possess a co-tenant must be excluded from the land for the statutory period
• statutory period begins once exclusion begins