Adverse possession Flashcards
What is adverse possession?
Occupancy that begins as a trespass and grows into possession. This can be brought as a cause of action (suing for quite title) or an affirmative defense
What are the justifications for Adverse possession?
○ Preventing frivolous claims
○ Correcting title defects
○ Encouraging development
○ Protecting personhood
What are the elements of adverse possession?
Actual and exclusive
open and notorious
Continuous
for the statutory period
Actual
The claimant must physically use the land in the same manner that a reasonable person would. Based on character, location, and nature.
Exclusive
Cannot be shared with the owner or public in general, others can’t also be trespassing or occupying, does not include those invited onto the land.
Open and Notorious
Possession must be visible and obvious, such as if the owner made a reasonable inspection they would become aware of the adverse claim
Adverse and hostile
Not authorized by owner.
Bad faith (minority)
Possessor knows that they do not have the right to possess the land.
Good faith (minority)
Possessory believes that they have the right to own the land.
Objective test (adverse and hostile)
The state of mind does not matter.
Continuous for the statutory period.
As continuous as a reasonable owner would, given the character and location of the land
Tacking
when multiple successive adverse occupants add their possession together to meet the statutory period. This requires privity.
Privity
Some reasonable relationship between successive possessors (deed, will, etc.)
Disability (adverse possession)
May extend a statutory period only when it exists at the beginning of the adverse possession. Death ends all disabilities, disabilities can’t be tacked, and disabilities won’t shorten the statutory period.
Types of Disability
○ Unsound mind
○ Imprisonment
○ Minority (under-ages)
○ Military-service
○ Out-of-State residence