Adverse Possession Flashcards
In general what is adverse possession?
It allows title to real property to be acquired. Title by adverse possession results from the operation of the statute of limitations for trespass. If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, the title vests in the possessor.
What is required to establish title by adverse possession?
The possessor must show: (i) Actual entry giving exclusive possession; (ii) Open and Notorious; (iii) Adverse/Hostile, and (iv) continuous throughout the statutory period.
When does the statutory period begin to run for an adverse possession claim?
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 pursed to judgment. Also, note, if the true owner is not disabled at the time he can first bring suit, the limitations period still runs if he is later considered disabled.
Adverse possession: Define actual and exclusive possession.
An adverse possessor will gain title only to land she “actually” occupies. “Exclusive” means that the possessor is not sharing with the true owner or the public.
When is actual possession of the entire parcel not necessary to claim the property adversely?
In some cases, actual possession of the entire parcel claimed is not necessary. If an adverse possessor actually occupies a reasonable portion of the parcel, and her occupation is under color of title (i.e., a document that purports to give title but does not actually do so) to the entire parcel, then she will be deemed to have constructively possessed the entire parcel, with the same result as if she had actually occupied the entire parcel.
Can two or more people obtain title by adverse possession?
Yes. Two or more people may obtain title by adverse possession; they take title as tenants in common.
In order for an possessor to claim property adversely, when is possession considered open and notorious?
Possession is open and notorious when it is the kind of use the owner would make of the land. The adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring.
When is the hostility requirement satisfied for adverse possession?
The hostility requirement is satisfied if the possessor enters without the owner’s permission. The adverse possessor’s state of mind is irrelevant (i.e. it does not matter whether she believes the land to be her own or knows she is trespassing). When possession starts permissively (e.g. by lease), possession does not become adverse until the possessor makes clear to the true owner the fact that she is claiming “hostilely.”
Can possession by one co-tenant be considered adverse possession?
Possession by one co-tenant is usually not adverse to his co-tenants because each co-tenant has the right to possession of all the property. A co-tenant must oust others or make an explicit declaration that he is claiming exclusive dominion to create adverse possession.
What is the rule regarding adverse possession if the grantor/tenant stays in possession?
Where a grantor stays in possession of land after her conveyance, she is presumed to be there with permission of the grantee. Likewise, if a tenant remains in possession after the expiration of the lease, he is presumed to have permission of the landlord.
When is the continuous possession requirement met for an individual to adversely possess a property? Does there need to be continuous possession by the same person?
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. Also, there need not be continuous possession by the same person; an adverse possessor can tack her own possession onto the periods of adverse possession of her predecessors, but privity is required.
Is payment of property taxes required for the adverse possessor to successfully adversely possess the land?
No. Most states do not require the adverse possessor to pay taxes on the property, but consider such payment good evidence of a claim of right.
Under adverse possession, what is the rule regarding disability of the true owner?
The statute of limitations does not begin to run if the true owner was under some disability to sue when the cause of action first accrued. Typically disabilities include minority, imprisonment, insanity. Only the disability of the owner existing at the time the cause of action arose is considered.
With regards to adverse possession, does the statute of limitations run against a holder of future interest?
No, the statute of limitations does not rune against a holder of a future interest until the interest becomes possessory.
When a property is possessed adversely, what is the effect of covenants in the true owner’s deed?
If an adverse possessor uses the land in violation of a restrictive covenant in the owner’s deed for the limitations period, she takes free of the restriction. If, however, the possessor’s use complies with such a covenant, she takes title subject to the restriction.
